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A 

DIGEST  OF  THE  LAWS, 


RESPECTINCr 


WILLS,  EXECUTORS  AND  ADMINISTRATORS, 

JURISDICTION  AND  PRACTICE      * 

OF   THE 

COTJUTS  OF  PEOBATE  AID  EQUITY, 

IN  RELATION  TO  THE 

ESTATES  OF  DECEDENTS: 

ALSO 

THE  LAW  OF  DESCENT,  DISTRIBUTION,  DOWER.  AND 
GUARDIAN  AND  WARD, 

INCLUDING 

THE  STATUTES  AND  DECISIONS 

OF   THE 

fflGH  COURT  OF  ERRORS  AND  APPEALS  OP  THE  STATE  OF  MISSISSIPPI, 

MiB   THE 

JUDICIAL  DECISIONS  OF  OTHER  STATES  OF  THE  UNION, 
ON  THE  SAME  SUBJECT. 


By  JOHN  M.  CHILTON. 


Ac  mibi  qttidem,  Uunen  etsi  haadqnaqaam  par  gloria  sequatur  scriptorem  et  auctorem  rerum,  tameo  ia  p'rinua 
wdaum,  videter,  res  gettas  acribere.  SALLUST. 


VICK8BURG. 

PRINTED  BY  M.  SHANNON,   FOR  THE  AUTHOR. 

1846. 


J 


Entered  according  to  Act  of  Congress,  in  the  year  1846,  by 

JOHN  M.  CHILTON, 

in  the  Clerk's  Office  of  the  District  Court  of  the  Southern  District  of  Mississippi. 


To  THE  Honorable  WM.  L.  SHARKEY, 
CHIEF   JUSTICE 

OF 

THE  HIGH  COURT  OF  ERRORS  AND  APPEALS, 

'  OF  THE 

STATE  OF  MISSISSIPPI; 

Whose  private  virtues,  and  learning,  probity,  and 
industry  on  the  bench,  during  the  last  fifteen  years, 
have  won  for  himself  an  enviable  reputation,  and^  for 
the  tribunal  over  which  he  has  so  long  presided,  a 
character  unsurpassed  by  that  of  the  Judiciary  of  any 
other  State  in  the  Union — this  volume  is  respectfully 
dedicated  by 

THE  AUTHOR. 

Oct.  1,  1846. 

( 


6862G1 


PREFACE. 


This  work  is  presented  to  the  Mississippi  Bar,  and  to  such 
public  officers  and  private  citizens  as  deem  it  not  an  unprofitable 
labor  to  investigate  the  laws  which  regulate  the  discharge  of 
those  duties  that  every  individual  may,  at  some  time,  be  called 
on  to  perform, — without  any  other  apology  than  the  difficulty  of 
compiling  and  publishing,  within  a  period  of  eighteen  months, 
daily  interrupted  by  other  engagements,  a  system  of  laws  so 
diffuse  and  complicated  as  those 'which  form  the  subject  of  this 
volume. 

The  author  is  not,  however,  without  a  hope,  and  even  confident 
belief,  that  such  as  will  diligently  read  what  he  has  compiled, 
will  derive  aid  from  his  labors ;  while,  on  the  other  hand,  he  is 
utterly  regardless  .of  the  censure  or  criticism  of  those  who  con- 
demn without  either  study  or  reflection. 

The  author  claims  no  credit  for  originality ;  as  he  is  well  aware 
that  the  best  recommendation  of  a  legal  commentary,  is  its  close 
adherence  to  the  letter  and  spirit  of  those  judicial  decisions  by 
which  the  laws  are  declared  and  interpreted.  He  has  also  sacri- 
ficed, when  necessary,  every  other  ingredient  of  what  is  denom- 
inated "style,"  to  precision  and  brevity. 

If,  in  some  instances,  he  has  quoted  decisions  which  may  not 
be  considered  authoritative  in  this  State,  it  has  been  done  with 
the  view  of  aiding  his  professional  brethren,  by  free  enquiry  and 
comparison,  to  form  more  correct  and  satisfactory  conclusions. 


PREFACE.  V 

If,  in  Other  instances,  (as  will  be  discovered,)  a  statute  or  deci- 
sion has  been  omitted  under  its-most  appropriate  head,  it  will  be 
easily  found,  with  the  aid  of  the  index,  under  some  other  head, 
"germain  to  the  matter." 

This  volume  has  been  wholly  written,  printed,  and  bound,  in 
the  State  of  Mississippi,  and  may  be  appealed  to  as  a  specimen 
of  the  degree  of  skill  in  the  mechanical  arts,  which  a  little  home 
PATRONAGE  would  sBcure  to  us  within  the  limits  of  our  own 
State.  . 

The  work  is  not,  however,  intended  exclusively  for  use  in  this 
State,  as  it  contains  all  the  leading  decisions  of  the  Supreme 
Courts  of  other  States,  on  the  same  subject. 

Hoping  that  the  contents  of  this  volume  will  repay  those  who 
have  encouraged  its  publication,  or  who  may  hereafter  purchase  it, 
the  author  tenders  to  them  his  respectful  acknowledgments. 

JNO.  M.  CHILTON. 
VicKSBURG,  Miss.  Oct.  \st,  1846. 


CONTENTS. 


Chapter  1.  Jurisdiction  of  the  Ecclesiastical  Courts,  1 

Chapter  2.             "                              "                     "  3 

Chapter  3.             "                               "                      "  6 

Chapter  4.  Jurisdiction  of  Equity,      -        -        ■        -  X7 

Chapter  5.  Practice  of  Probate  Court,    -         -         -  20 

Chapter  6.  Appeal, 27 

Chapter  7.  Wills — nature  and  effect  of,           -         -  41 

Chapter  8.  Wills — nuncupative,         -         -         -        -  54 

Chapter  9.  Codicil, 59 

Chapter  10.  Revocation  of  Wills,       -        -         -         -  61 

Chapter  U.  Re-publication  of  Wills,      ...  77 

Chapter  12.  Foreign  Wills, 81 

Chapter  13.  Who  incapable  of  devising,          -        -  87 

Chapter  14.  Who  may  be  Devisees,            -        -        -  92 

Chapter  15.  Sanity  of  Testator,       ....  94 

"                  "       what  proof  admissible,   -        -        -  100 

••                          fraud,  duress,  or  undue  influence,  101 

"                         what  proof  of  fraud,  &c.  admissible,  102 

Chapter  16.  What  embraced  in  a  Will,            -         -  104 

Chapter  17.  Construction  of  Wills,     -         -         -         -  107 

"                   rules  of  construction,        -        -        -  117 

Chapter  18.  Estates  tail, 121 

Chapter  19.  Contingent  remainder,         -        -        -  129 

Chapter  20.  Executory  Devise,            -         -         -        -  132 

Chapter  21.  Vested  remainders,      -         -         -         -  134 

Chapter  22.  Estates  on  condition,        .         .         .         .  137 

"                   conditions  precedent,       -        -        -  138 

"                   conditions  subsequent,          -        -        -  139 

"  effect  of  conditions  precedent  &  subsequent,  140 

"                   when  payable, 142 

Chapter  23.  Void  Devises — what,            -         -         ■  145 

Chapter  24.  Charges  on  Real  Estate,           -        -        -  158 

Chapter  25.  Trusts  created  by  Devise,     -        -        -  163 

Chapter  26.  Powers  created  by  Devise,       -        -        -  166 

Chapter  27,  Legacy, 174 

Donations,  causa  mortis,     -        -        -  177 

cumulative  Legacies,        -        -        -  178 

Legacy,  ademption  of,      -        -        -        -  180 

"       in  satisfaction  of  a  debt,    -        -  182 

lapse  of,  184— abatement  of,        -  187 


CONTENTS. 


VU 


Chapter  27. 


Chapter  28. 
« 

Chapter  29. 
Chapter  30. 


Chapter  31. 
Chapter  32. 
Chapter  33. 
Chapter  34. 


Chapter  35. 
Chapter  35.* 

Chapter  36. 
Chapter  37. 
Chapter  38. 
Chapter  39. 
Chapter  40. 
Chapter  41. 
Chapter  42. 
Chapter  43. 
Chapter  44. 
Chapter  45. 
Chapter  46. 


Chapter  47. 


Legacy — assent  of  Executor,     -        -        -  190 

"       time  of  payment,     -        -        -  192 

"       interest  on  and  profits  of,     -        -  193 

"       action  for,        -        -        -        -  196 

Probate  of  Wills, 199 

proof  of  lost  Wills,  ...  208 

Foreign  grant  of  Administration,      -        -  211 

Administration,  -        -        -        -  215 

who  may  be  Executor,  ■        -        -  216 

Executor,  how  appointed, '       -        -  217 

his  refusal,    -        -        -        -  218 

"        his  interest  in  testator's  goods,  222 

Executor's  interest  before  probate,         -  224 

Executor,  de  son  tort,  -        -        -  226 

Executor,  how  qualified,  -        -        -  231 

Administrator,  when  and  how  appointed,  233 

Bond  of  Executors  and  Administrators,      -  238 

"     breach  of,  ....  241 

"     action  on,       -        -        -        .        -  242 

Exec'rs.  and  Adm'rs.,  revocation  of  letters,  245 

Special  Administration — Administrator  ad 

colligendum, 249 

Administrator,  cum  testamento  annexo,     -  251 

Administrator,  de  bonis  non,        -        -  253 

Administrator-in-chief,  who  qualified,       -  257 

Administrator-in-chief,         -        -        -  258 

Administrator's  Inventory,       -        -        -  259 

Assets, 265 

Executors'  and  Administrators'  sales,        -  285 

"  "        sale  of  personalty,  303 

Administration,  authentication  of  debts,    -  306 

Administration,  presentation  of  claims,  309 

Administration,  insolvency  of  Estate,        -  311 

when  Estate  may  be  reported  insolvent,  315 

notice  by  Commissioners — time  of  Com-  )  oia 

missioners'  Report — exceptions  to  do.  ) 

effect  of  representing  Estate  insolvent,  317 

remedy  of  creditor  not  exhibiting  his  claim,  320 

re-opening  Commission,       -        -        -  321 

proceedings  before  Commissioners,   -  322 

Administration,  payment  of  debts,    -        -  323 

priority  of  claims,  ...  ib. 


*ThiB  chapter  should  have  been  36 — but  in  the  subsequent  chapters,  reference 
is  had  to  them  as  they  stand. 


Vlll 


CONTENTS. 


Chapter  48. 


Chapter  49. 
Chapter  50. 
Chapter  51. 
Chapter  52. 
Chapter  53. 
Chapter  54. 
Chapter  55. 

Chapter  56. 
Chapter  57. 
Chapter  58. 


Chapter  59, 


Chapter  60. 
Chapter  61. 
Chapter  62. 
Chapter  63. 


Executors'  and  Administrators'  account,    -  326 

evidence  of  payment,       ■        -        -  327 

order  of  payment,         ....  328 

what  payments  allowed,           -        -  329 

what  not  allowed,        -        -        -        -  331 

Administrator's  oath  and  answers,      -  332 

opening  and  correcting  annual  accounts,  ib. 

final  settlement,           ....  333 

effect  of  Decree,      ....  334 

Marshalling  Assets,          ....  335 

Devastavit, 340 

Set-off,             348 

Compensation  of  Exec'rs.  and  Adm'rs.  353 

Limitation, 356 

Interest, 360 

Costs,  when  Adm'r.  entitled  to,       -        -  362 

"      liable  for,     -        -  363 

Adm'n. — when  no  ex'rs,  or  adm's.  will  qualify,  365 

Actions  by  and  against  Exec'rs.  &  Adm'rs.  366 

Dower — what,  372 — who  entitled,           -  373 

Judge  Mayes'  opinion,      -        -    •    -  374 

Dower — of  what, 376 

"        according  to  what  value,         -  380 

"        how  assigned,  381 — how  barred,  391 

"        how  relinquished,           -        -  398 

"        in  personal  estate,      -        -        -  404 

generally,       ....  412 

Descent — what, 415 

"          representation,     -        -        -  417 

collateral,  419— statute  of,        -  421 

"          as  between  husband  and  wife,  424 

Distribution, 425 

Partition,             434 

Judge  and  Clerk  of  Probate  Court,     -        -  441 

Guardian  and  Ward,            -        -        -  466 

bond,  483 — action  on  bond,         -        -  484 

revocation  of  Guardianship,      -        -  486 

Guardian,  ad  litem — powers  of  Guardian,  487 

lease  of  land,  488— profits,      -        -  491 

contract  by  Guardian,  492 — do.  by  infant,  493 

sale  of  property,  498— waste,    -        -  499 

Habeas  corpus,  500 — account,     -        -  502 


CHAPTER  I. 


JURISDICTION. 


§  1 .  By  the  Civil  Law,  when  a  legacy  was  bequeathed  for  pious 
uses,  i.  e,  for  the  use  of  the  church,  or  of  the  poor — the  Bishops 
were  wont  to  administer  it.  On  this  usage  they  founded  a  claim 
to  intermeddle  with  the  probate  of  wills,  (a  temporal  authority,) 
and  Justinian  strongly  inveighs  against  this  usurpation  as  being 
both  dfsgraceful  and  absurd. 

§  2.  By  the  canon  law,  the  Popes  claimed  a  like  prerogative, 
and  as  their  influence  increased,  endeavored  to  acquire  juris- 
diction over  testaments,  and  issued  various  decretals,  tending 
to  promote  this  end.  Accordingly,  the  Bishop,  in  cases  where 
a  legacy  was  bequeathed  for  pious  uses,  and  no  Executor  was 
appointed  by  the  testament,  was  required  to  dispense  the  chari- 
ty, or,  if  an  Executor  was  appointed  and  the  heir  did  not  fulfil 
the  testament  within  one  year,  the  Ecclesiastical  Court  would 
compel  him,  even  though  the  testament  prohibited  the  Bishops 
from  intermeddling.  "For,"  as  was  said,  "this  prohibition  was 
an  immaterial  part  of  the  will,  and  therefore  void." 

But  notwithstanding  these  encroachments,  no  canonist  pre- 
tended to  claim  jurisdiction  for  the  Ecclesiastical  Courts  over 
testaments,  except  such  as  contained  provisions  for  pious  uses. 

§  3.  By  virtue  of  several  charters  from  the  crown  construed  so 
as  to  suit  their  purpose,  the  Ecclesiastical  Courts  at  length 
considered  all  testaments  (which  embraced  only  personal  pro- 
perty) to  be  charitable  dispositions,  and  henceforward  began  to 
devise  a  mode  of  publishing  wills.  Accordingly,  when  one 
died,  they  summoned  the  Executor  or  next  of  kin  "to  take  care 
of  the  soul  of  the  deceased,"  and  compelled  him  to  bring  in  the 
testament  of  the  decedent,  if  any  existed,  and  also  an  inventory 
of  his  goods  and  chattels.  The  charges  were  gradually  multi- 
plied and  heightened  so  as  to  bring  as  much  as  possible  into  the 
1 


2  JURISDICTION.  [CH.  I. 

Ecclesiastical  Courts,  and  finally  by  the  canon  of  Stratford,  it 
was  decreed,  that  even  the  residue  of  the  estate  should  be  dis- 
posed of  for  the  good  of  the  soul  of  the  deceased.  See  1. 
Strange  670. 

§  4.  Nevertheless  the  County  Court  continued  to  exercise 
jurisdiction  in  testamentary  matters  concurrently  with  the  Ec- 
clesiastical Courts — the  matter  of  wills  being  acknowledged  to 
be  mixtifori.  In  order  to  arrest  the  County  Courts  and  vest  ex- 
clusive jurisdiction  in  the  Ecclesiastical  Courts,  the  latter  induc- 
ed Richard  III  to  confirm  a  law  of  William  the  Conqueror  de- 
claring that  "no  matter  of  ecclesiastical  jurisdiction  should  be 
transacted  in  the  County  Courts."  Henceforth  (although  the 
original  law,  thus  confirmed,  existed  before  the  Ecclesiastical 
Court  claimed  or  exercised  a  general  jurisdiction  in  testamentary 
matters — )  the  clergy  exercised  full  and  exclusive  jurisdiction 
over  this  subject. 

§  5.  The  probate  of  testaments  did  not  then  belong  to  the 
clergy  by  the  Ecclesiastical  law,  in  England,  but  by  custom  and 
usage,  established  and  sustained  by  a  train  of  subtle  contrivan- 
ces and  insidious  encroachments,  exhibiting  throughout  an  illus- 
tration of  that  prudent  policy,  by  which  the  Court  of  Rome 
every  where  established  her  authority — wisely  yielding  to 
princes  of  resolution  and  steadiness,  but  proceeding  vigorously 
against  those  who  had  not  either  the  sagacity  to  discover,  nor 
the  ability  to  frustrate  her  designs. 

§  6.  In  the  various  States  of  this  Union  the  jurisdiction  ex- 
ercised by  the  Ecclesiastical  Courts  in  England,  pruned  of  its 
concomitant  abuses,  has  been  confided  to  a  single  tribunal,  or 
divided  between  several,  or  conferred  concurrently,  to  a  certain 
extent,  on  both.  In  this  work  only  the  jurisdiction  of  the  Court 
of  Probate  and  Court  of  Chancery  in  the  State  of  Mississippi, 
will  be  examined.* 


*For  decisions  on  this  subject,  in  the  different  States,  see  the  annexed  references. 

In  Virginia,  the  Circuit  Courts,  and  the  County,  and  Corporation  Courts,  have 
power  to  hear  and  determine  all  causes,  matters,  suits  and  controversies  testa- 
mentary, arising  within  their  respective  jurisdictions,  and  to  examine  and  take 
the  proof  of  wills,  and  grant  certificates  thereof.  3  Lomax  dig.  50.  The  General 
Courts' jurisdiction  in  such  cases  is  without  any  limit,  and  may  in  any  case  take 
proof  of  wills.    Ibid.    As  to  will  of  land,  probate  not  necessary.  2  Rand.  190. 


K 


GH.  II.]  JURISDICTION,  3 

CHAPTER  II. 

§  1.  In  England,  matters  testamentary,  as  the  granting  of  the 
probate  of  wills,  administration,  &c.,  are  of  ecclesiatical  cog- 
nizance— and  in  such  matters  the  Court  may  proceed  according 
to  the  ecclesiastical  law — and  their  sentences  shall  be  presumed 
just  and  agreeable  to  such  law,  though  contrary  to  the  rule  and 
reason  of  the  common  law.  2  Bacon's  abr.  (ed.  1846.)  Tit.  Eccl. 
Court.  D.  728.  If  there  be  gravamen,  it  must  be  redressed  by 
appeal.    Ibid.E.7^2.\ 


In  Kentucky,  County  Courts  have  exclusive,  not  concurrent  jurisdiction,  with 
Courts  of  equity,  to  estahlisk  wills,  as  well  of  real  as  of  personal  estate,  and  as  well 
where  the  original  is  lost,  as  where  produced.  9  Dana,  91.  See  also  6  Monroe, 
527-528—5  Littel,  273. 

In  Massachusetts,  Courts  of  Probate  have  complete  jurisdiction  over  the  probate 
of  wills  of  both  real  and  personal  estate,  and  its  decrees  are  conclusive  on  all 

arties.     1  Story  C.  C.  547—12  Mass.  525-533-534 1  Pick.  535-547-549 16 

lass.  433-441. 

In  Connecticut,  the  same  system  prevails.  1  Day,  170 — I  Conn. 476 — 3  Day,  313. 

And  so  in  Rhode-Island.     1  Story,  C.  C.  547. 

And  in  New-Hampshire.     8  New  H.  124, 

And  in  Ohio.     8  Ohio,  239. 

In  North-Carolina,  its  decrees  are  prima  facie  evidence.  Taylor,  73.  As  to 
Illinois,  see  6  Monroe,  527— And  Alabama,  9  Peters,  174. 

In  New-York,  the  Surrogates  of  the  several  Counties  have  jurisdiction  of  wills 
and  administration,  and  their  decisions,  as  evidence,  rest  on  the  same  footing  with 
those  of  the  Ecclesiastical  Courts.  6  Cowen,  494.  (The  Stat,  allows  their  regis- 
try of  wills,  to  be  only  prima  facie  evidence.) 

In  Pennsylvania,  independently  of  statute  modifications,  the  Court  of  Surro- 
gates, or  whatever  officer,  coming  in  the  place  of  the  English  Ecclesiastical  Court, 
(and  such  a  Court  exists  in  every  State,)  has  the  same  power  as  the  English  Ordi- 
nary in  respect  to  wills  and  testaments,  and  their  decrees  are  conclusive,  under 
the  same  limitations.  3  Binney,  498—5  S.  &  R.  212—5  Rawle.  80—5  Watts,  80. 
See  also  4  M'Cord,  217—1  Edward's  Ch.  266— S.  C.  4  Paige,  623—3  Wash  C.C. 
580—1  Green,  153— 10  Wheat.  465— 6  Cowen,  494— I  Miller,  (Lou.R.)  137-144 
— 5  ibid.  387-393,  on  same  subject. — See  also  next  chapter. 

t  A  Court  of  Chancery  will  interpose  to  arrest  the  proceedings  of  the  spiritual 
Court,  "  where  a  prohibition  lies — that  is,  where  Courts  of  Chancery  have  juris- 
diction concurrent  with  the  latter  Court,  or  where  there  is  a  suggestion  of  some- 
thing that  affects  the  rights  or  convenience  of  the  parties."  3  Atk.  594-207.  As 
where  a  legacy  is  charged  on  real  estate — because  as  the  jurisdiction  of  the  spirit- 
ual Court  is  confined  to  personalty,  and  cannot  therefore  order  a  sale  of  the  land, 
the  legatee  would  be  without  relief,  unless  Chancery  would  interpose.  2  Vern.26. 
So,  where  a  father  institutes  suit  in  the  spiritual  Court,  to  have  a  legacy  to  his  in- 
fant (whose  guardian  he  also  is,)  paid  over  to  himself,  a  Court  of  equity  will 
grant  an  injunction,  notwithstanding  the  spiritual  Court  has  jurisdiction  of  the 
subject,  because  a  Court  of  Equity  h^sgeneral  care  of  the  estate  of  infants.  3  Atk. 
207 — 1  Ch.  Ca.  121.  So,  a  Court  of  Chancery  will  injoin  husband  from  proceed- 
ing to  recover  in  the  spiritual  Court  a  legacy  to  his  wife,  because  the  latter  Court 
cannot  make  an  adequate  provision  for  the  wife.  Prec.  in  Ch.  546 — 1  Vern.  26. 
For  the  same  reason  a  Court  of  Chancery  will  compel  a  guardian  to  pay  interest 
on  an  infant's  money,  as  well  as  giye  security.  Ibid.  So,  a  Court  ot  EJquity  will 
take  jurisdiction  of  bill  of  Executor,  to  compel  creditors  to  dispute  their  claimB, 


4  JURISDICTION.  [CH.  II. 

§  2.  If  the  will  be  proved  in  the  Ecclesiastical  Court,  that 
court  has  executed  its  authority,  and  the  Executor  must  sue  in 
the  temporal  courts  to  get  in  the  estate  of  the  deceased — 2.  Ba- 
con's abr.  729 — 9.  co.  38.  For  Ecclesiastical  Courts  cannot  try 
the  right  of  property  to  goods.  2.  Roll.  abr.  287 — and  a  prohibi- 
tion will  be  granted  for  such  a  suit — Ibid. 

§  3.  But,  as  incident  to  their  jurisdiction  Ecclesiastical 
Courts,  may  determine  all  matters  necessary  to  the  authentica* 
tion  of  wills.  Therefore,  if  the  seal  of  the  ordinary  appears,  it 
cannot  be  proved  in  common  law  courts,  that  the  will  was  forg- 
ed, or  that  the  testator  was  non  compos,  or  that  another  person 
was  Executor.  For  of  these  the  ordinary  had  proper  jurisdic- 
tion, and  the  only  remedy  was  by  appeal.  2  Bacon,  ubi  supra, 
citing  Raymond  406-407;  Hard.  131—2  Roll.  abr.  299. 

But  it  may  be  proved,  in  such  case,  that  the  seal  was  forged, 
or  the  will  repealed,  or  that  there  were  bona  notabilia — because 
that  does  not  contradict  the  real  seal  of  the  Court,  but  admits  the 

and  right  of  preference.  2  Verii.  37.  So,  of  a  bill  to  correct  a  false  inventory. — 
1  Eq.  cas.  abr.,  citinsr  Palm.  402.  See  also  further  on  this  subject,  1  ch.  cas.  33 
—  I  Vernon,  106—2  Tbid.  323. 

Pending  litigation  of  a  will  in.  the  Spiritual  Court,  equity  will  enjoin  payment 
of  debts  to  the  Executors — I  Ch.  cas.  75 — and  appoint  a  receiver — 6.  ves.  172. 

The  jurisdiction  of  the  Chancery  Courts  extends  as  well  over  judgments  of  the 
Spiritual  Courts,  as  of  Courts  of  law.     1  Ch.  cases,  200. 

The  jurisdiction  of  equity  is  concurrent  with  that  of  the  Ecclesiastical,  in  regard 
to  legacies — where  a  discovery  of  assets  is  necessary,  and  that  before  the  will  is 
proYcd,  and  pending  the  litigation  thereof — this  being  for  the  benefit  of  all  the 
parties  interested — and  also  for  the  pieservation  of  the  estate — and  the  Courts 
having  taken  jurisdiction,  will  proceed  to  decree  payment  of  legticics,  &c. — 1 
Vern.  106 — 2  Vern.  47 — 1  Atk.  285 — Therefore  legacies  are  suable  in  Equity— 
I  Ch.  cas.  121. 

A  Court  of  Equity  will  pursue  a  decedent  debtor's  estate  into  the  possession  of 
.  whatever  person  may  have  obtained  it.  1  Ch.  cas.  57 — 2  Vern.  75---and  decree 
execution  of  a  trust  arising  out  of  will.    5  Mad.  360. 

And  although  a  Court  of  Equity  will  not  examine  into  fraud  in  obtaining  a  will 
after  a  probate  thereof  in  the  Spiritual  Court — 2  Vernon,  47 — Yet  before  probate 
a  Court  of  Probate  may  set  aside  a  will  as  well  as  a  deed  for  fraud.  Prec.  Ch.  173. 
The  reason  is,  that  where  the  jurisdiction  of  the  two  Courts  is  concurrent,  one 
will  not  interpose  after  the  other  is  possessed  of  the  cause.  Prec.  in  Ch.  546 — 2 
Vernon,  8— Ibid.  76—3  Atk.  17— 4  Bro.  P.  C.  108. 

And  always  in  the  exercise  of  concurrent  jurisdiction,  Courts  of  Chancery  will 
adopt  the  law  of  the  forum  in  which  the  matter  was  originally  cognizable — and 
for  this  reason,  in  England,  if  a  question  arise,  on  the  right  of  the  legatee  to  de- 
mand payment,  it  is  governed  by  the  civil  law,  unless  charged  on  real  estate,  in 
which  case  the  Common  law  would  prevail.  3  Ridge.  P.O.  cited  in  2  Chitty's 
Digest,  596—3  Mad.  360— Ambl.  345. 

In  conclusion,  it  may  be  observed,  that  the  general  ground  of  prohibition^  is — 
I.  Defect  of  jurisdiction; — 2.  Defect  in  the  mode  of  trial.  See  the  preceding 
Buthorities. 


CH.  II.]  JURISDICTION.  5 

seal  and  avoids  it.  Salk.  36— Vaugh.  207— Holt  305—2  Bacon, 
ubi  supra. 

§  4.  Notwithstanding  regularly  Spiritual  Courts,  have  con- 
usance of  the  incidents  and  accessories  of  the  principal  power, 
yet,  if  the  incident  be  merely  a  temporal  matter,  the  spiritual 
must  proceed  according  to  the  temporal  Courts,  as  if  payment  be 
pleaded  in  bar  of  a  legacy,  and  there  be  but  one  witness  (which 
the  Ecclesiastical  Court  will  not  admit) — ^there,  the  Temporal 
will  prohibit  them,  because  the  temporal  matter  bars  the  ecclesi- 
astical demand.  2 Bacon,  ubi  supra.  729 — citing  various  decisions. 

On  the  contrary,  if  there  be  only  one  witness  to  prove  a  nun- 
cupative will,  and  the  Ecclesiastical  Court  refuse  the  probate 
thereof,  because  their  law  requires  two  witnesses  to  such  will,  a 
prohibition  will  not  lie,  because  there  is  no  other  mode  of  authen- 
ticating wills  except  in  the  Spiritual  Courts,  and  this  being  the 
principal  matter,  the  latter  Court  had  cognizance  thereof.  Ibid. 
Yet  if  a  revocation  of  a  will  be  proved  by  one  witness,  and  the 
Spiritual  Court  adjudges  the  proof  insufiGicient,  a  prohibition  will 
lie,  because  the  revocation  of  a  will  is  a  temporal  matter.  Ibid. — 
citing  Yelv.  92—2  Roll.  299— Carth.  143— Sid.  274. 

§  5.  But  the  jurisdiction  of  the  Ecclesiastical  Courts,  is  con- 
fined to  wills  of  personalty  only,  and  therefore  if  land  be  charged 
with  debts,  and  ordered  by  the  will  to  be  sold  for  that  purpose, 
and  proceeds  to  be  distributed  among  several  persons,  only  a 
Court  of  Equity  can  entertain  a  suit  to  enforce  such  direction — 
because  the  legacy  here  arises  originally,  out  of  lands.  Ibid.  730. 
See  2  Vem.  26.  It  is  otherwise,  if  the  legacy  be  of  a  rent,  for  it 
is  a  chattel.  Ibid.  Nor  can  the  Ecclesiastical  Court  compel  the 
distribution  of  the  residue  of  the  decedent's  estate,  who  has  by 
will  devised  any  portion  of  it,  for  this  Court  only  has  jurisdiction 
to  order  a  distribution  where  the  party  dies  intestate.  Ibid,  citing 
Ld.  Raym'd.  86—1  Pierre  Williams,  7,  S.  C— 1  Eq.  cas.  abr.  135. 

§  6.  The  Ecclesiastical  Courts  can  neither  fine,  imprison  or 
amerce — for  their  jurisdiction  being  founded  on  the  canon  or  civil 
law,  their  proceedings  are  only  by  Ecclesiastical  censures.  Ibid. 
733— citing  U  co.  44  a.^i  Inst.  324— Noy  17.  They  can  only 
punish  by  penance  and  costs,  which  first  (penance)  may  be  com- 
muted for  money. — 5  Mod.  70,  cited  in  Ibid. 


6  JURISDICTION.  [CH.  UI. 

§  7.  Nor  can  these  Courts  take  an  obligation  from  one  sued 
in  them  to  perform  the  sentence  of  the  Court,  because  if  the  mat- 
ter be  within  its  jurisdiction  there  are  lawful  means  of  compel- 
ling him  to  perform  such  sentence.  Ibid.  733,  citing  2  Roll.  abr. 
302,    (But  see  act  of  53  Geo.  ch.  127 — regulating  Eccl.  Courts.) 


CHAPTER  III. 

§  1.  In  the  State  of  Mississippi,  up  to  the  period  of  the 
new  Constitution,  formed  in  September,  1832,  the  jurisdiction 
over  testamentary  matters  resided  in  the  Orphan's  and  County 
Courts ;  and  by  act  of  the  Legislature  of  this  State  of  March,  1833, 
all  the  "  jurisdiction,  powers,  and  duties,"  of  these  two  Courts, 
were  transferred  to  the  Court  of  Probates.  It  has  been  decided 
by  the  Appellate  Court  of  Mississippi  that  the  jurisdiction  pos- 
sessed by  the  Orphan's  Court  in  conjunction  with  the  County 
Court,  was  coextensive  with  the  jurisdiction  which  is  now  posses- 
sed by  the  Probate  Courts  under  the  revised  Constitution.  Being 
then  conferred  by  law,  it  was  perhaps  Ttot  an  exclusive  jurisdic- 
tion, but  it  was  ample,  and  the  adjudications  made  by  those 
Courts  on  matters  testamentary  are  not  distinguishable  in  effect, 
from  those  which  have  been  made  by  the  Probate  Courts  under 
the  present  system.  By  repeated  decisions  of  this  Court  we  have 
not  only  held  that  the  Probate  Courts  have  exclusive  original  ju- 
risdiction in  testamentary  matters,  but  that  their  judgments  cannot 
be  attacked  or  corrected,  except  by  appeal.  Griffith's  admr.  vs. 
Vertner  &  wife — 5  Howard,  739. 

"  It  is  evident  that  every  administration  must  be  finally  settled 
somewhere.  The  very  object  of  an  administration,  is  to  bring 
the  whole  personal  estate  to  an  adjustment  preparatory  to  a  dis- 
tribution." lb.  See  also  Gildart's  heirs  vs.  Starke — 1  How.  450. 

§  2.  It  has  also  been  decided  in  the  case  of  Carmichael  vs.  Brow- 
der,  that  "the  Constitution  gives  the  Probate  Court  exclusive  juris- 


CH.  III.]  JURISDICTION.  T 

diction  in  all  matters  specifically  set  forth  in  the  article  from  which 
it  derives  its  powers."  3  Howard,  252,  The  reasoning  by  which 
the  Court  has  supported  this  opinion  is  far  from  being  satisfac- 
tory. It  amounts  to  this — ^that  the  Constitution,  because  it  gave 
full  jurisdiction  to  Courts  of  Chancery,  and  also  "  jurisdiction 
to  Courts  of  Probate  in  all  matters  testamentary  and  of  adminis- 
tration," &c. — intended  that  such  jurisdiction  should  be  exclusive. 
But  this  view  of  the  subject  conflicts  with  a  principle  repeatedly 
recognized  elsewhere,  that  jurisdiction  is  not  ousted  except  by 
plain  words,  or  by  a  necessary  implication  ;  and  therefore  that  an 
act  giving  jurisdiction  to  Justices  of  the  Peace  (for  example,)  in 
cases  where  the  debt  exceeded  $100,  and  containing  no  words 
ousting  the  jurisdiction  of  the  Supreme  Court  of  Chancery,  in  like 
cases,  the  latter  remained.  3  Devereux,  358 — See  also  5  S.  &  P. 
(Alab.)  Repts.  133—1  S.  Rep.  566—1  Overt.  1—3  Yeates,  479— 
2  S.  &  R.  363—8  Pick.  453—2  Rawle,  369. 

§  3.  The  rule  of  law  established  in  the  cases  last  cited,  is 
directly  in  conflict  with  the  decision  of  the  High  Court  of  this 
State,  which  has  tested  this  question  by  the  opposite  rule,  "  that 
the  grant  of  powers  to  one  Court  necessarily  excludes  them  from 
another."  3  How.  355.  But  with  due  deference,  it  may  be  re- 
marked, that  this  rule  of  construction  is  only  applicable,  where  no 
words  in  the  grant  exist,  either  expressly,  or  ex  vi  termini,  show- 
ing an  opposite  intention.  Now,  while  in  the  grant  of  power  or 
jurisdiction  in  all  testamentary  matters,  &c.,  the  word  "exclusive" 
is  not  used,  nor  any  other  word  denoting  an  intention  to  make  that 
grant  exclusive; — on  the  other  hand,  the  Constitution  says,  "a 
separate  Court  of  Chancery  shall  be  established  with  full  jurisdic- 
tion in  all  matters  of  equity."  For  what  is  meant  by  full  juris- 
diction in  all  matters  of  equity,  we  must  necessarily  refer  to  the 
Courts  of  Equity  in  England,  and  in  our  State  prior  to  the  new 
Constitution,  and  both  examples  will  demonstrate  that  their  juris- 
diction included  as  "matters  of  equity,"  both  concurrent  and  con- 
trolling jurisdiction  with  and  over  the  Spiritual  Courts  in  one  case, 
and  the  "Orphan's  and  County  Court"  in  the  other  case.  If  then 
the  construction  of  our  High  Court  be  correct,  our  Superior 
Courts  of  Chancery  have  not  "full  jurisdiction  in  all  matters  of 
equity,"  but  only  in  all  "matters  of  equity"  except  matters  testa- 


8  JURISDICTION.  [CH.  III. 

mentary,  of  administration,  guardian  and  ward,  &c.  It  is  hum- 
bly conceived  that  the  framers  of  the  Constitution  would  not 
have  left  so  sweeping  an  exception  to  rest  on  mere  implication, 
and  thus  carelessly  have  lopped  off  so  many  of  the  essential  pow- 
ers of  our  Court  of  Chancery.  At  all  events,  the  presumption  to 
the  contrary,  arising  from  the  language  of  the  Constitution  by 
which  a  Court  of  Equity  is  created,  is  far  stronger,  than  that,  on 
which  the  decision  of  the  High  Court  rests.  Whether  our  High 
Court  will  modify  or  change  their  decision  hereafter,  or  adhere  to 
the  salutary  rule  of  " Stare  decisis"  and  confirm  by  future  decis- 
ions the  Doctrine  already  established,  by  their  opinion  in  the  case 
above  cited,  is  a  question  which,  of  course,  only  time  can  deter- 
mine. The  reader  is  referred,  in  connection  with  what  has  been 
said,  to  the  opinion  of  Chancellor  Buckner,  overruled  in  3  How. 
252,  as  reported  in  1  Freeman's  Ch.  Repts.  136-148. 

§  4.  The  Constitution  of  1832  declares,  that  a  Court  of  Pro- 
bates shall  be  established,  in  each  County  of  this  State,  with  juris- 
diction in  all  matters  testamentary  and  of  administration  in  Or- 
phan's business  and  the  allotment  of  Dower — in  cases  of  Idiotcy, 
Lunacy,  and  persons  n^n  compos  mentis — Art.  4,  Sec.  18,  How. 
&  Hutch,  p.  26. 

Under  this  clause  it  has  been  decided  that  the  Judgment  or 
decree  of  a  Court  of  Probate  in  conformity  to  a  verdict  of  a  Jury 
upon  an  issue  of  devisavit  vet  non,  is  conclusive  against  all  parties 
interested  in  the  will.  3  Howard's  Rep.  157,  citing  4  Rand.  R. 
588 — and  8  Yerger's  R.  186 — and  1  Starkie's  E.  241 — and  cases 
there  cited.  But  see  Cowden  vs.  Cowden,  5  Sm.  &  M.  So  of 
every  jin/il  judgment  or  decree  of  a  Court  of  Probates,  upon 
subjects  confided  to  its  jurisdiction,  unless  it  can  be  impeached 
on  the  ground  of  fraud  or  collusion.*    Ibid.     1  Howard,  450 — 6 


*In  North-Carolina,  it  is  decided,  that  such  decree  can  only  be  opened  on  ihe 
ground  of  newly  discovered  evidence.  4  Devert  aux,  437.  A  mistake  in  the  sen- 
tence of  a  Court,  without  collusion  between  the  Executor  and  Cavciiter,  is  no  rea- 
son for  Tti-probating  a  will,  once  registered — even  tho'  the  result  would  Itave  beea 
different  had  the  Executor  appealed.     Ibid.  430. 

In  Virginia,  if  a  will  purporting  to  devise  real  estate,  as  well  as  personal,  he 
admitted  to  probate  by  the  Probate  Court  in  general  terms,  the  sentence  of  that 
Court  will  be  full  probate,  though  the  will  in  regard  to  the  realty  was  not  duly  ex- 
ecuted, and  if  that  sentence  be  not  reversed,  it  is  conclusive,  and  will  be  regard- 
ed a  due  devise  of  the  land.  3  Lomax  dig.  50 — citing  I  Leigh,  287 — 2  Rand.  19R 
—3  ib.  373-  4  ib.  585. 


CH.  111.]  JURISDICTION.  ^  9 

Howard,  736—1  Sm.  &  M.  ch.  rep.  589—5  S.  &  M.— also  3  How- 
ard's R.  252—14  S.&  R.  161-184— and  ibid,  by  U.S.C.Ct.  11. 
Ibid.  431—2  Wash.  C.  C.  R.  475—4  ibid.  657.  But  the  fraud 
must  be  distinctly  shown,  or  be  apparent  on  the  face  of  the  re- 
cord.   IMd. 

It  is  conclusive  in  ail  cases,  where  the  error  of  the  Court  is  on- 
ly in  the  manner  of  exercising  its  jurisdiction.  2  Mass,  124-125. 
7  ib.  83^1  Day,  215—1  ib.  170—1  Conn.  51—8  Verm.  365— 
Harper  31—1  Nott  &  Mc.  326—5  N.  H.  246—15  Pick.  30.  But 
it  is  otherwise,  if  the  decree  of  the  Court  be  only  incidental.  4 
Watts,  183.  Nor  can  the  truth  of  the  records  of  this  Court  be 
questioned.  7  S.  &  R.  172—12  ibid.  171-4  Binn.  173.  Provided 
the  Court  has  acted  within  its  jurisdiction.  12  S.  &  R.  171.  But 
its  proceedings  in  partition  of  lands,  may  be  annulled  in  an  action 
of  ejectment.    6  S.  &  R.  271. 

§  5.  It  is  not  easy,  under  all  circumstances,  to  adjust  the  pre- 
cise line  of  the  jurisdiction  of  Courts  of  Probate.  Yet,  few  ca- 
ses can  arise  in  which  all  doubt  may  not  be  removed  by  the 
correct  application  of  one  general  rule,  viz :  Whenever  the  party 
seeking  the  aid  of  this  Court,  or  to  be  subjected  to  its  authority, 
derives  his,  or  her  right  or  capacity  from  the  last  will  and  testa- 
ment of  a  deceased  testator,  or  by  reason  of  the  death  of  any  per- 
son intestate,  and  not  merely  from  a  contract  made  with  such  tes- 
tator or  intestate  during  his  life  time,  this  Court  may  exercise  ju- 
risdiction— as  (for  example,)  in  case  of  a  legatee  or  devisee  under 
the  will,  or  heir  or  distributee,  (or  the  assignee  of  either,)  in  case 
of  intestacy,  or  widow  of  either  the  testator  or  intestate  whose 
right  of  dower  or  distribution,  tho'  only  inchoate  by  marriage,  is 
consummated  by  the  death  of  her  husband. 

But  in  case  of  a  creditor,  whose  interest  is  founded  on  contract, 
express  or  implied,  made  with  the  testator  or  intestate,  during  his 
life^time,  this  Court  has  no  jurisdiction,  except  in  rare  and  speci- 
fied cases — which  form  exceptions  to  the  general  rule,  and  will 
form  the  subject  of  a  future  section.  This  general  rule  has  been 
illustrated  by  a  decision  of  our  High  Court  of  Appeals,  in  the 
case  of  Hart  &  wife  vs.  Dunbar — 4  Smedes  &  Marsh.  273.  In 
that  case,  the  widow  released  her  right  of  dower  in  her  husband's 
lands,  in  order  to  enable  the  Executors  to  obtain  a  larger  price. 
2 


10  JURISDICTION.  [CH.  111. 

She  afterwards  filed  in  this  Court  a  petition  to  compel  the  heir 
or  distributee  to  pay  her  the  value  of  her  dower  so  relinquished, 
out  of  the  proceeds  of  the  land*  It  was  held,  that  the  Court  of 
Probates  had  no  jurisdiction  of  such  a  claim,  because  it  rested  on 
a  contract  made  by  the  widow  with  the  Executors  of  her  deceas- 
ed husband,  and  not  on  the  will  or  death  of  the  latter.  Ibid.  286. 
The  Court  further  said — "there  is  another  view  presented  in  this 
case.  There  is  a  will ;  whether  by  the  terms  of  the  will  and  the 
action  under  it,  the  land  was  converted  into  personalty,  and  whe- 
ther it  does  not  pass  as  such."  Ibid,  citing  3  Leigh,  419 — 1  Lo- 
max  on  Exec.  220.  "  If  the  will  converts  the  land  into  personal- 
ty, this  Court  would  have  jurisdiction.  The  principle  on  which 
this  doctrine  depends  is,  that  Equity  considers  things  as  done 
which  ought  to  be  done.  Therefore  if  money  is  directed  by  the 
testator  to  be  turned  into  land,  or  land  into  money,  each  is  con- 
sidered to  be  that  species  of  property  into  which  the  testator  di- 
rected its  conversion.  3  Wheat.  577 — 5  Munf.  117 — See  also  1 
Lomax  on  Exrs.  220"* 

§  6.  Whenever  the  Court  of  Probates  has  jurisdiction,  its 
decree,  if  final,  is  conclusive  against  all  persons,  whether  parties 
to  the  proceedings,  of  full  age  or  not.  3  Howard's  R.  148 — 7  ibid. 
143—2  Peters,  157—6  ibid.  720—14  ibid.  458—16  ibid.  71—8 
Yerger's  repts.  186.    But  see  6  S.  &  M. 

It  has  been  decided  in  No.  Carolina  that  parties  and  privies  are 
all  who  claim  through  a  party,  or  have  notice.  4  Devereaux,  437. 
And  in  Mississippi,  such  notice  may  be  by  actual  service  of  prO' 
cess,  or  by  publication,  where  the  latter  is  authorised  by  statute. 

§  7.  It  has  been  observed  that  there  are  exceptions  to  the 
general  rule  laid  down  in  the  5th  Section  of  this  Chapter,  re- 
specting the  jurisdiction  of  Courts  of  Probate.  These  will  be 
now  briefly  enumerated.    They  are  few  and  well  defined. 

Creditors  cannot  avail  themselves  of  the  jurisdiction  of  this 
Court  to  compel  an  executor  or  administrator  to  pay  them.   3  Sm. 


*It  is  decided  that  a  Court  of  Probates  may  compel  an  Administrator  on  a  peti- 
tion of  stranger,  to  place  on  the  Inventory,  assets  of  the  decedent.  7  Howard,  316. 
And  80  may  an  Adm'r.  ad  colligendum — and  if  in  such  case  the  defendant  claim 
such  assets  as  his  own,  he  may  have  the  benefit  of  an  issue,  to  the  Circuit  Court, 
to  try  the  right  of  property.  Compton  &  others  vs.  Compton,  (not  reported) — by 
Court  of  Appeals  in  Mississippi.    €  S.  &,  M. 


CH.  111.]  JURISDICTION.  H 

&  Marsh.  329 — Unless  their  claims  are  authenticated  arid  the 
personal  estate  is  insufficient,  or  the  estate  be  insolvent.  Ibid. — ■ 
But  in  the  event  either  of  an  insufficiency  of  such  personal  es' 
tate,  or  insolvency,  the  creditor  may,  on  due  authentication  of  his 
claim,  file  a  petition  in  this  Court  for  relief.  Ibid. 

Until  a  report  of  insolvency,  however,  the  Court  of  Probates 
has  not  exxlusive  jurisdiction  of  the  assets  in  the  administrator's 
hands;  but  he  may,  till  such  report,  be  sued  in  the  Circuit  Court, 
or  other  Courts,  and  the  assets  in  his  hands  be  reached  by  execu- 
tion from  such  Court.  3  Sm.  &.  Marsh.  454.  But  by  a  statute 
of  Mississippi,  passed  1826,  if  such  report  of  insolvency  be  after 
commencement  of  suit,  but  before  judgment,  the  plaintiff  though 
allowed  to  proceed  to  judgment,  is  not  allowed  to  have  any  exe- 
cution thereof,  but  must  resort  to  a  Court  of  Probates,  How.  & 
Hutch.  Sec.  98.  415. 

In  all  cases  of  lunacy,  idiotcy,  and  persons  non  compotes  mentis, 
this  Court  may  exercise  jurisdiction,  although  in  none  of  these 
cases,  do  the  rights  of  the  parties  depend  on  the  will  or  death  of 
a  testator  or  intestate— because  in  all  of  them  the  Constitution  ex- 
pressly  confers  jurisdiction  on  this  Court. 

§  8.  There  are  also  several  cases,  in  which  statutes  of  this  State 
authorise  action  by  this  Court,  even  at  the  instance  of  the  credit- 
ors, and  where  the  estate  is  not  insolvent,  nor  the  personalty  in- 
sufficient to  pay  them — which  cases  also,  apparently  form  ex- 
ceptions to  the  general  rule.  One  of  these  is  where  the  Judge  of 
Probates  is  authorized  to  issue  a  writ  of  ne  exeat,  when  any  per- 
son interested  suggests  that  the  administrator  or  executor  is  about 
to  remove  assets  out  of  the  State.  How.  &  Hutch.  415.  Sect.— 
But  this  is  based  not  on  any  right  of  the  Court  to  exercise  juris- 
diction of  the  creditor's  claim,  but  on  the  power  and  duty  of  the 
Judge  to  protect  the  property  of  a  decedent,  and  his  authority  over 
the  person  of  an  administrator  or  executor,  as  a  minister  of  the 
Court.  So,  where  a  decedent,  during  his  life-time  covenanted  to 
convey  title  to  land,  the  statute  directs  the  Judge  of  Probates  to 
empower  his  executor  or  administrator  to  convey  the  legal  title  in 
conformity  to  the  bond.  But  although  this  power  is  intended  to 
consummate  a  contract  made  with  the  decedent  during  his  life- 
time, yet  as  equity  would  have  compelled  the  administrator  or 


12  JURISDICTION.  [CH.  111. 

executor,  on  petition  of  the  vendee  after  payment  of  the  purchase 
money,  to  convey  the  legal  title,  and  as  the  powers  of  the  Courts 
of  Probate  in  Mississippi,  are  coextensive  in  cases  of  administra- 
tion, with  'those  of  a  Court  of  Equity — (see  3  Howard's  R.  258, 
and  2  ibid.  856) — the  exercise  of  such  power  does  not  seem  to  be 
in  conflict  with  the  rule,  which  precludes  creditors  from  suing  in 
Courts  of  Probate.  Besides  this — in  the  distribution  and  parti- 
tion of  the  property  of  a  decedent,  the  Probate  Court  would  not 
regard  the  land  embraced  in  such  covenant  for  title,  and  this  of 
itself,  is  tantamount  to  an  authority  to  the  executor  or  adminis- 
trator to  convey  the  legal  title  in  conformity  to  the  title  bond. 

§  9.  Where  the  power  of  the  Probate  Court  is  limited,  as 
its  power  to  grant  letters  of  administration  with  the  will  annexed, 
(I  How.  R.  330)  the  act  of  the  Court  must  show  a  case  which 
gives  the  Court  jurisdiction,  or  it  will  be  void.  Ibid.  The  exist- 
ence of  all  the  facts  which  give  the  Court  power  to  decree  a  sale 
of  lands,  must  therefore  appear  affirmatively  on  the  record  of  its 
proceedings.    6  Howard,  230 — 1  How.  R.  379. 

§  10.  Having  defined  and  illustrated  the  general  rule  gov- 
erning the  jurisdiction  of  the  Court  of  Probates,  we  will  here  in- 
troduce a  summary  of  the  cases,  in  which  our  High  Court  of  Ap- 
peals has  decided  that  this  Court  has  not  jurisdiction. 

Courts  of  Probate  must  be  confined  to  the  powers  granted,  and 
to  such  implied  powers  as  are  necessary  to  the  exercise  of  the 
powers  granted.    Harrisons  vs.  Brown's  heirs — 5  Sm.  &  Marsh. 

A  general  creditor  cannot  resort  to  a  Court  of  Probate,  unless 
there  be  in  his  way  some  legal  impediment  to  a  suit  at  law,  as 
where  estate  is  insolvent  or  personalty  insufficient  to  pay  debts. 
3  Sm.  &  Marsh.  329 — Harris  &  others  vs.  Fisher  &  others,  admr's. 
&c. — 5  Sm.  &  Marsh. 

This  Court  has  no  jurisdiction  of  a  devastavit  of  an  executor  or 
administrator,  except  to  refuse  to  allow  his  accounts,  or  to  remove 
him.  Harris  et  al.  vs.  Brown's  admr's.  0  Sm.  &  Marsh. — Stub- 
blefield  vs.  M'Craven.  Ibid. 

Nor,  of  a  petition  filed  against  an  administrator,  who  was  also 
partner  of  the  deceased,  to  compel  such  administrator  to  account 
for  the  partnership  effects,  nor  to  grant  an  injunction  prohibiting 
such  administrator  from  collecting  such  partnership  effects.    The 


CH.  111.]  JURISDICTION.  13 

remedy  in  such  case,  is  in  Chancery.     Scott  adm'r.  de  bonis  wow, 
vs.  Searles — 4  Sm.  &  Marsh. 

But  a  Court  of  Probate  may  compel  an  administrator  on  peti- 
tion of  a  stranger  to  place  on  the  inventory  assets  of  his  decedent. 
7  Howard,  316 — Compton  vs.  Compton  &  others,  6  S.  &  M. 

Nor  can  this  Court  entertain  a  petition  filed  by  an  administra- 
tor asking  advice,  as  to  distribution  of  funds  among  creditors  of 
an  insolvent  estate,  a  portion  of  which  creditors  are  Banks  whose 
paper  is  at  a  discount.  Such  advisory  power  belongs  only  to  a 
Court  of  Chancery.  Norcom  &  Burwell  admr's.  vs.  Robbins  & 
others — 4  Sm.  &  Marsh. 

Nor  can  this  Court  entertain  a  Bill  of  review.  Harris  &  others 
vs.  Brow's  adm'rs.  5  Sm.  &  Marsh.  Such  a  Bill,  in  its  nature,  is 
incompatible  mth  the  legitimate  powers  of  the  Court  of  Probates. 
Stubblefield  vs.  M'Craven,  5  Sm.  &  Marsh. 

By  act  of  the  legislature  of  1846,  it  is  enacted  that  the  Court 
of  Probate  shall  have  power  and  they  are  hereby  required,  to  en- 
tertain bills  of  review  for  the  correction  of  any  interlocutory  order, 
or  final  decree  of  said  Courts,  in  the  same  manner  and  according 
to  the  same  rules  as  the  same  are  entertained  by  Courts  of  Equity. 
In  proceedings  for  the  final  settlement  of  any  Executor,  Adminis- 
trator or  Guardian,  any  person  interested  may  by  bill  of  review, 
open  and  cause  to  be  examined  by  the  Court  any  annual  or  par- 
tial settlement  made  by  such  executor,  administrator  or  guardian, 
and  surcharge  or  falsify  the  accounts  rendered  upon  such  annual 
or  partial  settlement,  and  persons  interested  may  at  any  time, 
within  two  years  after  final  settlement,  by  bill  of  review  open  the 
account  of  any  executor,  administrator  or  guardian,  and  surcharge 
and  falsify  the  same  and  n^t  after — saving  to  minors  and  femes 
covert  the  same  time  after  the  removal  of  their  disability.  Sec.  3d. 
Under  the  preceding  decisions  of  our  High  Court,  the  constitu- 
tionality of  this  last  act  may  perhaps  be  deemed  questionable. 
This,  however,  will  be  referred  to  that  Court,  when  a  case  shall 
arise,  and  the  subject  closed  here  by  the  remark,  that  a  bill  of  re- 
view lies  to  correct  a  definitive  decree — first,  for  error  of  law 
apparent  on  the  record,  but  not  error  in  the  decree  alone — 2nd, 
upon  discovery  of  new  matter.  Story's  Eq.  pi.  322.  No  persons 
except  the  parties  and  their  privies  in  representation,  can  have  a 


14  JURISDICTION.  [CH.  III. 

bill  of  review.  lb.  325.  For  the  general  doctrine  of  bills  of  re- 
view, see  Story's  Eq.  pi.  320  to  335. 

Nor  can  this  Court  take  jurisdiction  of  proceedings  against  a 
surety  on  an  administrator's  or  other  official  bond,  by  plenary 
proceedings.    4  Howard,  638. 

Nor  enforce  from  legatees,  on  petition  of  the  executrix,  a  per- 
sonal demand  due  from  them  to  her,    3  S.  &  M.  256. 

Nor  can  this  Court  decide  on  the  conflicting  rights  and  reme- 
dies of  the  creditors  of  an  estate  in  the  course  of  administration 
before  it.  By  Chancellor  Buckner — 1  Freeman's  ch.  repts.  509. 
See  also,  3  How.  205 ;  1  Sm.  &  M.  527.  In  the  same  case  it  was 
decided  by  Chancellor  Buckner,  that  the  power  of  marshalling 
assets  belongs  exclusively  to  a  Court  of  Chancery,  lb. 

Nor  can  a  Court  of  Probate  grant  letters  of  administration  with 
icill  annexed,  unless  it  appear  that  such  a  case  has  arisen  as  is 
specified  in  the  statute  authorising  such  letters.    1  How.  379. 

This  Court  cannot  entertain  a  petition  of  guardian  appointed 
in  another  State.    2  Sm.  &  M,  532. 

§  11,  This  Court  cannot  exercise  jurisdictibn  repugnant  to  the 
Constitution,  even  by  consent  of  parties,  7  Howard,  329.  And 
therefore  a  grant  of  letters  testamentary  or  of  administration,  with- 
out jurisdiction,  is  void,  and  need  not  be  regarded  by  the  Court 
having  jurisdiction,  in  granting  other  letters.  2  Leigh,  719, — 
See  also,  1  Call,  55;  1  Const.  R.  478;  1  Bibb,  263;  1  N.&  M.  192; 
1  Breeze,  32 ;   1  J.  J.  Marsh.  476 ;  3  M'Cord,  280 ;  6  Littel,  303 ; 

1  Hayw.  176 ;  2  ib.  136,  176 ;  Conf.  R,  516.  Nor  can  an  agree- 
ment of  parties  authorise  the  Court  to  decide  a  case  upon  princi- 
ples different  from  what  the  law  prescribes  for  its  decision.  Ib. 
And  see  4  Dever,  463.  But  if  the  Court  has  jurisdiction  of  the 
subject  matter,  and  the  party  has  some  privilege  which  exempts 
him  from  its  jurisdiction,  he  may  waive  this  privilege.  4  M'Cord, 
79;  4Mass.593;  Peter's C.C. rep. 469;  Wright, 484;  lBreeze,32; 

2  Yerger,  441;  3  Littel,  332;  1  Call,  55;  5  Monroe,  388;  Cooke, 
27;  Kirby,  HI;  3  Rand.  394;  Wright,  21,  176;  Minor,  65;  4 
Devereaux,464;  3  Caine,  129. 

When  the  subject  matter  is  not  within  the  jurisdiction  of  the 
Court,  or  where  no  Court  in  the  nation  has  jurisdiction,  an  objec' 
tion  to  jurisdiction  may  be  taken  at  any  stage  of  the  proceedings. 


CH.  111.]  JURISDICTION.  16 

3  Mass.  24;  1  ib.  347;  5  ib.  362;  3  Murphy,  39;  1  Root,  409;  2 
Tyler,  218;  Wright,  21;  Minor,  64;  2Cranch.  126;  2  Dallas,  368. 
So  where  the  trial  is  local,  or  the  Court  has  no  common  law  juris- 
diction, or  where  it  has  been  taken  away  by  statute  without  pre- 
scribing the  manner  in  which  the  objection  shall  be  taken.  3 
Murphy,  39.  But  the  objection  must  be  apparent  on  the  face  of 
the  record.  Ib.  In  all  such  cases  the  objection  may  be  taken  un- 
der the  general  issue.  2  Gallis,  325.  But  a  plea  to  the  jurisdic- 
tion is  proper,  in  transitory  actions,  when  some  Court  in  the  na- 
tion has  jurisdiction,  but  not  the  Court  in  which  suit  is  brought. 
3  Mass.  24;  5  ib.  362;  6  N.  Hamp.  497.  And  the  plea  must  show 
such  jurisdiction  in  another  Court,  lb.* 

Where  the  court,  having  jurisdiction,  has  exercised  it,  and 
its  power  over  the  case  is  gone,  consent  of  parties  may  restore  it. 
Hardin,  448;  2  Wash.  213. 

§  12.  As,  on  the  one  hand,  consent  cannot  give  jurisdiction  to 
the  Court  of  Probates,  where  the  constitution  does  not  confer  it — 
So,  on  the  other  hand,  a  testator  cannot  deprive  this  court  of  ju- 
risdiction, where  the  constitution  confers  it.  Therefore,  where  a 
testator  directed,  that  in  case  of  any  dispute,  a  majority  of  his  ex- 
ecutors, (the  wife  his  executrix,  having  a  voice,)  shall  decide  it 
finally  and  conclusively,  without  any  resort  to  courts  of  justice,  the 
courts  will  construe  this  so  as  to  effect  the  reasonable  intent  of  the 
testator; — but,  if  any  unreasonable  use  be  made  of  this  power,  it 
forms  a  case  in  which  the  courts  will  interpose.  Such  a  clause 
cannot  prevent  any  party,  conceiving  himself  injured,  from  sub- 
mitting his  case  to  a  court  of  justice.     1  Peter's  R,  680. 

So,  a  prohibition  of  the  devisees,  by  testator,  from  impleading 
the  executors,  &c.,  and  directing  that  forfeiture  of  the  devise 
should  be  the  penalty  for  so  doing,  was  held,  not  to  prohibit  de- 
visee from  drawing  into  examination  any  fraud  or  collusion  of  the 
executors.  5  Monroe,  246.  Nor  is  jurisdiction  taken  away,  by  con- 
sent of  parties  that  disputes  which  may  arise  between  them  shall 
be  settled  by  arbitration.  6  Har.  &  J.  408;  1  Harring.  234;  4 
Watts,  39;  1  Miles,  418;  3  Porter,  231. 

♦  Defendant  cannot  plead  that  judge  is  not  constitutionally  a  judge — because 
it  lequires  a  man  to  decide  the  question  whether  he  is  a  judge,  which  he  can  only 
decide,  as  judge.  3  Murphy,  181.  A  Court  can  be  called  on  to  decide  the  extent 
of  its  jurisdictiou,  but  not  whether  it  be  a  Court.    3  Murphy,  39. 


1$  JURISDICTION.  [CH.  UU 

§  13.  By  act  §  21,  ch.  39,  H.  &  H.  p.  474,  it  is  provided  that 
whenever  there  shall  be  so  near  a  relation  between  any  deceased 
person,  and  the  Judge  of  Probate  of  the  county  in  which  letters 
testamentary  or  of  administration  have  been  or  ought  to  be  granted, 
according  to  the  provisions  of  this  act,  as  between  father  and  son, 
by  nature  or  marriage,  or  brother  in  like  kind,  or  whenever  a 
judge  of  Probate  shall  be  interested  in  the  estate  of  any  deceased 
person,  as  being  legatee,  devisee  or  distributee,  such  judge  shall 
be  disqualified  to  act  in  the  settlement  of  such  deceased  person's 
estate,  and  the  cognizance  thereof  shall  appertain  to  the  Judge  of 
Probate  in  an  adjoining  county,  and  who  resides  nearest  to  the 
residence  of  the  judge  so  disqualified.  And  said  Judge  of  said 
adjoining  county  shall  finally  settle  the  estate,  and  have  the  pro- 
ceedings recorded  in  the  Register's  office  of  the  county  from  which 
the  cause  was  removed.  So,  by  Sec.  26,  it  is  provided  that  where 
the  judge  has  been  executor  prior  to  his  election,  or  administrator 
or  guardian,  and  has  not  settled  his  accounts,  he  shall  refer  his 
administration  to  the  judge  of  the  adjoining  county,  as  in  Sec.  21, 
who  shall  in  like  manner  have  his  proceedings  recorded  in  the 
county  from  which  the  same  is  removed.     H.  &  H.  475. 

By  act  of  1846,  approved  5th  March,  it  is  provided  that  "where 
any  judge  of  Probates  shall  be  related  by  affinity  or  consanguin- 
ity to  any  party  interested  in  any  proceeding  in  his  court,  or  shall 
have  been  employed  therein  as  counsel  or  attorney,  it  shall  be  his 
duty  to  transfer  said  proceedings  to  the  court  of  Probates  of  some 
adjoining  county,  and  the  further  proceedings  in  such  case  by  the 
judge  of  Probates  of  the  county  to  which  the  same  shall  have  been 
transferred,  shall  be  as  valid  and  conclusive,  as  if  he  had  original 
jurisdiction  thereof — Provided,  that  by  consent  of  all  parties,  in- 
terested in  such  proceedings,  which  consent  shall  be  entered  on 
the  records,  as  part  of  the  proceedings  of  the  case,  the  disability 
of  said  judge  from  the  relationship  or  previous  employment  as 
counsel  or  attorney  may  be  waived,  and  his  competency  to  try  the 
cause  be  restored."    Sec.  10,  Act  1846. 

A  grant  of  administration,  by  a  judge  of  Probates,  who  is  a  cred- 
itor, is  void,  although  in  his  own  mind  he  resolved  never  to  en- 
force his  claim.  21  Pickering,  101.  So  also  would  be  a  grant  of 
special  administration  in  such  case.    22  Pickering,  507. 


CH.  IV.]  JURISDICTION  OF  EQUITY.  17 

,,  But  if  he  relinquish  the  demand,  he  may  take  jurisdiction  of 
the  estate.    5  Pick.  483. 

§  14.  A  judge  of  Probate  is  a  mere  trustee  of  an  administration 
bond,  for  all  the  next  of  kin  and  creditors;  and  he  cannot  submit 
their  rights  to  reference  or  arbitration.  2  Mass.  152;  3  Mass.  235; 
4  Mass.  68,  74. 

§  15.  In  New- York  it  has  been  decided,  that  the  Surrogate 
(Judge  of  Probate,)  has  no  authority,  as  agent  of  a  party,  to  receive 
money,  which  he  has  decreed  that  another  shall  pay  to  the  party; 
and  such  payment  would  not  satisfy  the  decree.  6  Cowen,  494. 


CHAPTER  IV. 

JURISDICTION    OF   EQUITY. 

§  I.  Having,  in  the  preceding  chapters,  defined  the  limits  of 
the  jurisdiction  of  the  Courts  of  Probates,  the  next  enquiry,  in  or- 
der, is — when  will  a  Court  of  Equity  have  the  right  to  interpose, 
and  grant  relief  in  controversies  respecting  such  matters  as  are 
expressly  confided  by  the  Constitution  to  Courts  of  Probate? 

It  has  been  decided,  in  Mississippi,  that,  in  regard  to  these 
matters,  a  court  of  Equity  can  only  interpose,  where  the  courts  of 
Probate  have  not  exclusive  jurisdiction,  or  where  the  powers  of 
the  latter  are  inadequate  to  full  relief.* 

If  the  court  of  Probate  cannot  give  full  relief,  and  the  party  has 
not  lost  his  remedy  by  laches,  then  a  court  of  Equity  will  interpose 
and  relieve.    3  How.  R.  252;  4  ib.  455;  1  Sm.  &  M.  208. 

A  court  of  Equity  may  also  entertain  a  bill  filed  by  an  admin- 
istrator de  bonis  non,  to  injoin  his  predecessors  from  collecting 
claims  due  to  the  estate  of  his  intestate;  for,  a  court  of  Probates 
cannot  grant  such  an  injunction.   .5  S.  &  M. 


*It  seems  the  powers  of  the  Probate  court  in  matters  committed  to  it,  are  coex- 
tensive with  those  of  a  court  of  Equity.    3  How.  252. 

3 


p8  jurisdiction  of  equity.  [cH.  IV. 

The  vendee  of  an  administrator,  at  private  sale,  acquires  no 
right  to  the  property  sold,  as  against  the  distributee,  and  in  such 
Case  a  court  of  Equity  will  entertain  a  bill  against  the  vendee  of 
the  administrator,  composed  with  a  double  aspect — either  to  en- 
force the  lien  for  the  payment  of  the  purchase  money,  or  for  the 
recovery  of  the  specific  property.  1  S.  &  M.  219 — lb.  221 — AlUtTy 
if  the  administrator  be  the  only  party.  Ih. 

A  court  of  Chancery  has  no  original  jurisdiction  over  the  sub- 
ject of  wills.    2  How.  806. 

§  2.  In  administration  cases,  where  the  court  of  Chancery  had 
original  jurisdiction,  previous  to  our  amended  Constitution,  that 
court  may  still  take  cognizance,  where  no  letters  testamentary  or  of 
administration  have  been  granted.  4  S.  &  M.  707.*  Therefore, 
where  F.  died  in  Louisiana  in  1813,  leaving  a  will  in  that  State, 
and,  without  taking  out  letters  of  administration,  the  widow  con- 
verted large  portions  thereof  to  her  own  use,  a  bill  filed  by  the 
heirs  and  devisees,  praying  that  the  widow  and  her  second  hus- 
band, might  be  compelled  to  account,  was  held  on  demurrer,  to  be 
within  the  jurisdiction  of  the  Superior  Court  of  Chancery;  but  that 
it  would  have  been  otherwise,  if  letters  testamentary  or  of  admin- 
istration had  been  granted.!  Ih. — and  authorities  there  cited. 

§  3.  The  jurisdiction  of  courts  of  Probate  over  wills,  supersedes 
the  jurisdiction  which  is  exercised  in  the  Chancery  Court  of  Eng- 
land, in  taking  proof  of  wills,  or  in  perpetuating  the  testimony  to 
prove  them,  unless  in  cases  peculiarly  circumstanced.  For  most 
purposes,  the  proof  may  at  once  be  offered  to  the  court  of  Probates, 
where  the  will  is  to  be  established  and  admitted  to  record.  But 
still  there  may  be  cases  complicated  with  fraud,  trust,  discovery, 
or  other  principles  of  equitable  jurisdiction,  that  may  support  an 
application  to  chancery  to  prove  and  establish  the  will.  3  Lomax, 


*"ln  this  case,"  the  court  said,  "we  do  not  intend  to  alter  any  old  rule,  nor  es- 
tablish any  new  one."  The  reason  of  the  opinion  is  embraced  in  the  following 
words  of  the  court:  "If  letters  had  been  obtained  in  this  State,  the  creditors 
would  have  a  remedy  against  the  eiecutors  or  administrators,  in  the  coart  of  Pro- 
bale  or  other  courts  of  law,  according  to  the  nature  of  the  case." 

tWhere  different  courts  have  concurrent  jurisdiction,  that  before  which  pro- 
ceedings are  first  instituted,  and  whose  jurisdiction  first  attaches,  has  paramount 
authority,  and  cannot  be  ousted  by  subsequent  proceeeings  in  other  courts.  16 
Mass.  171;  Ibid.  203;  I  Hawks,  78;  3Yerger,167;  2  Aik.  381;  9  Wheat.  532  j 
Paine,  621 ;  2  Stew.  &  Port.  9 ;  ."i  Howard,  80. 


CH.  IV.]  JURISDICTION  OF  EQUITY.  J^ 

63— citing  2  Gilm.  R.  21 1.  The  same  doctrine  prevails  in  Jien- 
tucky,  and  in  that  State  equity  will  interpose  to  establish  a  will, 
wherever  there  exists  any  peculiar  circumstance  which  would  de- 
feat the  object  in  the  county  court.    9  Dana,  91. 

In  general,  Equity  will  not  entertain  jurisdiction,  merely  to 
construe  a  will,  no  other  ground  of  equity  existing.  2  M'Cord's 
ch.  R.  26.  Nor  can  it  intermeddle  with  a  will  once  admitted  to 
probate  by  the  court  of  Probate.  7  How.  143;  2  How.  806.  For 
a  court  of  law  is  as  competent  to  construe  wills,  as  a  court  of 
Equity.*  2  M'Cord's  ch.  R.  26.  And  a  court  of  Equity  has  no 
jurisdiction  to  determine  of  the  validity  of  a  will.  7  B.  &  C.  437; 
13  Vesey,  297;  3  Mer.  161;  Jacob,  467;  4  Hag.41.t 

§  4.  An  appointment  by  a  feme  covert  under  a  power  or  settle- 
ment, is  exclusively  cognizable  in  a  court  of  chancery.  1  Dev.  & 
Bat.  No.  Car.  R.  186. 


*In  Barnesleyw.  Powell,  Lord  Hardwicke  decided,  that  "there  was  a  material 
difference  between  the  court  of  Chancery  taking  on  itself  to  set  aside  a  will  of  per- 
sonal estate,  on  account  of  fraud  or  forgery  in  obtaining  or  making  that  will,  and 
taking  from  the  party  the  benefit  of  a  will  established  in  the  Ecclesiastical  court, 
by  his  fraud  *^  not  on  the  testator,  but  on  the  next  of  kin.^^  The  latter  ground, 
*'di8tinct  from  the  will  itself,  and  abstracted  from  the  general  jurisdiction  of  the 
Ecclesiastical  court  to  determine  of  a  will  of  personal  estate,"  would  give  juris- 
diction to  a  court  of  chancery,  so  as  to  compel  the  defendants  to  "consent  in  the 
Ecclesiastical  court  the  next  term,  to  the  revocation  of  the  will."  His  Lordship 
added — "I  think  1  ought  to  go  further;  and  altho'  I  shall  not  yet  decree  a  trust, 
yet  I  shall  even  now  be  warranted  to  decree  an  account  of  the  personal  estate,  to 
be  paid  into  the  bank,  for  the  benefit  of  the  parties  entitled,  as  was  done  in  the 
case  of  Powisw.  Andrews.  This  is  the  better  method  to  avoid  any  jealousy  of 
infringing  on  the  Ecclesiastical  court," 

t  A  court  of  Probates  can,  on  proper  showing,  vacate  the  probate  of  a  will,  and 
examine  and  decide  de  novo.  1  S.  &  M.  ch.  R.  589.  Therefore  according  to  the 
principle  established  by  our  High  Court  of  Errors,  (see  3  Howard,  252;  4  How. 
455;  i  S.  &  M.  208,)  a  court  of  Equity  would  in  such  case  have  no  jurisdiction 
in  Mississippi.  In  No.  Carolina  the  same  doctrine  prevails — and  this  even  after 
the  term  01  the  court  at  which  the  will  was  proved.  1  Murphy,  N.  Car.  R.  99. — 
And  in  So.  Carolina,  a  successor  of  the  judge  granting  the  probate  may  revoke  it. 
Nott  &  M'Cord,  326.  See  also  3  S.  &  M.  302 — in  which  it  is  decided  that  a  court 
of  Probates  may  vacate  a  sale  of  land  for  fraud,  during  the  same  term  at  which  it 
is  reported. 


20  PRACTICE  OF  PROBATE  COURT.       [CH.  V. 

CHAPTER  V. 


PRACTICE  OF  PROBATE  COURT. 


§  1.  The  ordinary  proceedings  of  the  Court  of  Probate  were 
conducted  orally,  and  without  any  other  registration  thereof,  than 
what  the  clerk  is  required  by  law  to  keep~(see  sect.  20,  ch.  36, 
How.  &  H.  473) — until  the  passage  of  the  act  of  1846,  approved 
March  5th,  by  which  it  is  enacted,  that  it  shall  be  the  duty  of  the 
Probate  Judges  to  keep  in  their  courts  respectively,  a  docket-book 
of  all  cases,  pending  in  their  courts,  on  which  docket  shall  be  en- 
tered, in  the  order  in  which  they  are  made,  all  applications  for 
letters  testamentary,  of  administration  and  guardianship,  and  all 
other  suits  or  causes  in  said  courts,  whether  by  bill,  petition  or 
motion,  and  whether  the  same  be  exparte,  or  between  two  or  more 
persons  litigant  in  said  courts ;  and  at  each  term  of  said  courts,  it 
shall  be  the  duty  of  the  judge  thereof,  to  take  up  and  dispose  of 
the  business,  pending  between  them,  in  the  order  in  which  the 
same  is  entered  upon  their  dockets.  Sec.  1  of  act  of  1846.  And 
by  section  10th  of  same  act,  it  is  provided,  that  where  the  judge 
is  disqualified  from  acting,  by  affinity  or  consanguinity,  or  has 
been  counsel  or  attorney,  and  the  parties  consent  that  he  shall  try 
the  cause,  such  consent  shall  be  entered  of  record,  as  part  of  the 
proceedings  in  the  case,  and  thereupon  the  disability  of  the  judge 
shall  be  waived,  and  his  competency  restored. 

In  proceedings  in  the  Orphan's  court,  on  settlement  of  estates, 
such  entries  should  be  made  as  to  show,  at  whose  instance  settle- 
ments are  ordered,  what  representatives  appear,  who  claim  under 
the  decedent,  and  who  are  actors  in  the  cause.  4  Por.  (Ala.)  rep. 
332. 

A  court  of  Probate  ought  to  keep  a  pefect  record  of  all  its  or- 
ders and  decrees;  and  orders  of  notice,  among  other  things  should 
either  be  recorded  or  be  filed,  with  the  return  upon  them;  and  in 
all  important  decrees,  if  previous  notice  have  been  made,  the  fact 
should  be  recited  in  the  decree.     14  Mass.  222,  226. 

§  2.  By  another  statute,  (How.  &  H.  sec.  17,  ch.  36,  p.  472,)  it 
is  provided,  that  whenever  either  of  the  parties,  having  a  contest 
in  the  Orphan's  court,  shall  require,  the  said  court  may  direct 


1 


CH.  v.]       PRACTICE  OP  PROBATE  COURT.  21 

j)lenary  proceedings,  by  bill  or  petition,  to  which  there  shall  be 
an  answer  on  oath,  (or  affirmation;)  and  if  the  party  refuse  to  an- 
swer on  oath,  (or  affirmation,  as  the  case  may  require,)  to  any  mat- 
ter alleged  in  the  bill  or  petition,  and  proper  for  the  court  to  de- 
cide upon,  the  said  party  may  be  attached,  fined  and  committed 
at  the  discretion  of  the  court,  and  the  matters  set  forth  in  said  bill 
or  petition,  shall  be  taken  pro  confesso,  and  decreed  accordingly.* 
(See  sec.  10,  post.) 

§  3.  The  bill  or  petition,  authorized  by  the  foregoing  statute, 
should  consist  of  a  logical  statement  or  narration  of  the  facts  on 
which  the  petitioner  rests  his  claim  to  the  decree  or  order  of  the 
court  which  he  prays  for ;  and  in  this,  as  well  as  in  other  respects, 
it  should  conform  to  a  bill  in  chancery,  avoiding  however,  all  the 
features  of  the  latter,  which  are  merely  formal.  The  court  should 
be  cautious  not  to  exclude  matter  essential  to  a  due  decision,  nor 
allow  proceedings  to  be  spun  out  into  unnecessary  length ;  but 
in  case  of  serious  doubt,  as  to  the  ultimate  effect  of  any  averment, 
it  should  be  admitted.  5  Eng.  Eccl.  R.  120.  In  a  testamentary 
suit  a  variety  of  slight  circumstances  are  pleadable,  where  the  case 
is  one  involving  a  question  of  fraud.  2  ib.  131.  For  wherever 
fraud  is  charged^  the  court  will  allow  a  greater  latitude  of  plead- 
ing than  in  ordinary  cases;  but  even  then,  remote  facts  must  not 
be  as  minutely  stated,  as  those  which  bear  directly  on  the  point 
at  issue.  3  ib.  61.  Minute  facts  should  not  be  pleaded,  but  prop- 
erly fall  within  evidence.    Ib.  329. 

While  on  the  one  hand,  it  is  desirable  to  compress  allegations 
into  the  narrowest  possible  compass  within  which  all  relevant 
facts  can  be  fairly  and  adequately  stated,  especially  in  cases  in- 
volving necessarily  a  great  quantity  of  matter ;  2  Eng.  Eccl.  rep. 
134 ; — so,  on  the  other  hand,  the  whole  substantive  case  of  the 
party  should  be  brought  before  the  court  at  once.  Yet,  when  it 
is  clearly  shown,  that  the  facts  could  not  have  been  pleaded  soon- 
er, additional  articles  may  be  given  in.    5  ib.  28. 


•All  courts  of  record  have  a  right  to  make  rules  for  the  regulation  of  their  prac- 
tice, not  in  violation  of  the  laws  of  the  land,  and  they  are  the  most  proper  judges 
of  the  extent  and  application  of  their  own  rules.  8  S.  &  R.  336.  Old  rules  of 
practice  consonant  to  reason  and  analogy,  and  having  undergone  no  authoritative 
alteration,  ought  to  govern  the  practice  of  courts  at  the  present  day.  2  Eng.  Eccl. 
R.  47. 


22  PRACTICE  OF  PROBATE  COURT.       [CH.  V. 

§  4.  A  petition  to  the  court  of  Probates  must  not  be  multifa- 
rious, nor  incongruous,  nor  informal,  nor  defective.  1  How.  380; 
3S.&M.256. 

But  a  bill  or  petition  is  not  multifarious,  if  filed  with  a  double 
aspect — as,  for  the  enforcement  of  a  supposed  lien,  or  a  recovery 
of  the  specific  property.  1  S.  &  M.  208;  Ibid.  221.  A  bill  for 
partition  of  real  estate,  and  for  distribution  of  personal  estate,  in 
the  hands  of  an  administrator  by  a  co-heir,  is  bad  for  multifarious- 
ness, as  uniting  several  matters  of  distinct  natures.  1  How.  R.  380. 
A  petition  for  administration  pendente  lite,  must  set  forth  a  spe- 
cial cause  for  granting  it.  5  Eng.  Eccl.  rep.  365.  So,  a  petition, 
for  the  sale  of  particular  property  and  distribution  of  the  proceeds, 
by  a  legatee,  must  state  the  condition  of  the  estate  to  be  distribu- 
ted, and  show  the  character  of  the  rest  of  the  estate — otherwise  it 
will  be  too  vague.  2  S.  &  M.  30.  And  all  claimants  must  be 
made  parties.     Ibid.;  7  Howard,  106. 

§  5.  Unconnected  parties,  if  having  a  common  interest  center- 
ing in  the  point  at  issue,  may  join  in  the  same  bill  in  chancery.  1 
S.  &  M.  483.  And,  the  same  rule,  it  is  presumed,  should  prevail 
in  a  court  of  Probates. 

A  motion  to  revoke  letters  of  administration,,  because  the  ad- 
ministrator is  not  next  of  kin,  can  be  made  only  at  the  instance  of 
the  next  of  kin.     1  How.  322. 

In  a  controversy  between  the  administrator  and  the  distributees, 
the  court  cannot  take  notice  of,  nor  act  upon  the  rights  of  credit- 
ors, not  parties  to  the  suit.  1  S.  &  M.  546. 

§  6.  By  act  of  1846,  sect.  4,  it  is  provided — that  no  order  or 
decree,  affecting  the  right  or  interests  of  any  minor,  shall  be  valid 
and  binding  on  said  minor,  or  his  or  her  interest  in  any  estate, 
administered  in  any  court  of  Probate,  Avithin  this  State,  unless  his 
or  her  guardian  (if  a  resident  of  the  county  in  which  the  proceed- 
ings are  had,)  shall  be  first  personally  served  with  five  days  notice, 
to  appear  and  defend  the  rights  of  the  said  minor ;  or  if  the  guar- 
dian of  such  minor  be  not  resident  of  this  State,  and  do  not  ap- 
pear, or  if  the  guardian  whether  resident  or  not  of  the  county,  be  a 
party  personally  interested,  to  give  validity  and  effect  to  any  such 
order  and  decree,  the  court  shall  appoint  a  guardian  ad  litem,  to 
protect  the  interest  of  such  minor.   Sec.4,  of  act  of  March  5, 1846. 


CH.  v.]  PRACTICE  OF  PROBATE  COURT.  23 

It  is  competent  for  the  law  to  prescribe  the  mode  of  bringing 
the  parties  into  court,  and  it  may  either  be  done  by  service  of 
process,  or  by  publication  of  notice.  5  How.  736.  The  latter  is 
constructive  notice  sufficient  to  put  ptirties  interested  on  their 
guard.     Ibid.  740. 

By  act  of  1846,  sec.  12,  it  is  provided,  that  on  an  executor's  ren- 
dering a.  final  account,  citations  shall  issue  to  be  served  on  parties 
resident  in  the  county  where  the  court  sits ;  and  where  the  parties 
interested  are  non-residevis  of  the  State,  and  beyond  its  jurisdic- 
tion, upon  affidavit  of  such  fact,  the  court  shall  order  publication, 
in  some  newspaper,  citing  such  absent  parties  to  appear  on  a  day 
certain  not  less  than  60  days  after  the  first  insertion  of  such  notice, 
to  show  cause  why  such  account  should  not  be  allowed. 

§  7.  On  a  motion  for  distribution  of  an  estate,  a  "pro  confesso 
against  the  administrator  of  the  first  administrator,  does  not  af- 
fect the  rights  of  the  heirs.  7  How.  106.  The  former  does  not 
represent  the  intestate  of  the  latter.  Ibid.  And  the  intestate's 
administrator,  in  every  case  where  distribution  is  sought,  has  been 
held  to  be  a  necessary  party,  lb.  Ill — citing  1  Paige  270;  6 
Rand.  448;  2  M'Cord's  ch.  R.  168;  1  Paige  166;  4  John.  ch.  repts. 
199.  So  far  does  this  rule  extend,  that  distributees  cannot  sue  an 
executor  d&  son  tort,  without  having  an  administrator  de  bonis  nan, 
as  a  party,  because  a  recovery  by  the  distributees  would  leave  him 
still  liable  to  the  demand  of  the  administrator  de  bonis  non.  Ib.- 
citing  2  Leigh,  649. 

§  8.  By  section  18,  of  chapter  36,  How.  &  Hutch.  472,  it  is  fur- 
ther provided,  that  upon  such  plenary  proceeding,  all  the  depo- 
sitions shall  be  taken  and  recorded,  and  in  case  either  party  shall 
require,  the  court  shall  direct  an  issue  to  be  made  up  and  sent  to 
the  circuit  court  of  the  same  county,  and  the  said  issue  or  issues 
shall  be  tried  in  the  said  circuit  court  as  soon  as  may  be,  without 
any  continuance  longer  than  is  necessary  to  procure  the  attend- 
ance of  a  witness  or  witnesses.  And  the  power  of  said  court,  and 
the  proceedings  relative  thereto,  shall  be,  as  in  other  cases,  re- 
specting the  trial  of  issues.  But  the  Orphan's  court  shall  give 
judgment  and  decree  upon  the  bill  and  answer,  or  upon  the  bill, 
answer,  depositions,  or  finding  of  the  jury; — and  in  all  cases  of 
contest,  the  Orphan's  court  may  award  costs  to  the  party  in  their 


^4  PRACTICE  OF  PROBATE  COURT.       [CH.  V. 

opinion  entitled  thereto,  and  may  compel  payment  by  attachment 
of  the  body,  or  of  the  goods  and  chattels  of  the  party  against  whom 
such  costs  shall  be  awarded. 

§  9.  Although,  by  the  foregoing  statute,  the  Judge  of  Probate 
is  required,  upon  the  requisition  of  either  party,  to  refer  an  issue 
to  the  circuit  court,  yet  the  facts  may  be  ascertained,  if  necessary, 
in  the  Orphan's  court,  by  a  jury.  1  Binney,  364.  Such  issues  are 
no  new  things,  but  often  allowed  in  case  of  wills.  5  Serj.  &  Rawl/ 
146;  3  Penna.  185.  But  it  cannot  delegate  its  jurisdiction  in  mat- 
ters depending  on  both  law  and  fact.*    Ibid. 

When  an  issue  is  referred  to  the  circuit  court,  if  the  circuit  court 
render  a  judgment,  it  is  a  nullity.  The  circuit  court  can  only  cer- 
tify the  verdict  of  the  jury  to  the  court  of  Probates,  that  judgment 
may  be  rendered  thereon  in  the  latter  court.  And  an  application 
for  a  new  trial  must  be  made  in  the  latter  court,  after  certifying 
such  verdict.  2  Paige,  487;  3Con.Eng.  ch.rep.63;  2Rob.  Prac. 
356.  If  refused  there,  and  the  case  finally  disposed  of,  the  whole 
proceeding  may  be  brought  up  to  the  court  of  Errors.  Wallace  & 
others  vs.  Wingate's  adm'r.,  Jan.  term,  1846,  of  High  Ct.  of  Err. 
&App.ofMiss.— 6S.&M. 

One  administrator,  ad  colligendum,  may  compel  his  co-admin- 
istrator to  place  on  the  inventory  the  assets  of  the  decedent,  and 
if  the  defendant  claim  them  as  his  own,  he  may  have  the  benefit 
of  an  issue  to  the  circuit  court,  to  try  the  right  of  property. — 
Compton  vs.  Compton  &  others— -Jan.  term  of  Ct.  of  Err.  &  App. 

1846.  im. 

§  10.  By  act  of  1846,  March  5,  sec.  2,  it  is  provided,  that  in  all 
cases  in  which  any  court  of  Probate  shall  make  and  enter  a  judg- 
ment and  decree  against  any  party  litigant  therein,  or  against  any 
executor,  administrator,  or  guardian,  for  payment  of  a  sum  of  mo- 
ney by  said  party  litigant,  executor,  administrator,  or  guardian, 
to  any  other  party  entitled  to  the  same,  by  the  terms  of  said  judg- 
ment or  decree,  said  court  shall  have  power  to  force  a  compliance 


*The  same  precision  and  minuteness  ought  to  be  observed  in  framing  issues 
directed  by  this  court  to  settle  an  administration  account,  which  ar6  required  in 
forming  an  issue  before  auditors,  in  an  action  of  account  rendered.  3  Penn.  208. 
(Whether  the  court  of  Probates  can,  in  Mississippi,  direct  an  issue  to  be  tried  by 
a  jury  in  said  court — and  in  what  cases — Query?    See  6  S.  &.  M.  and  5  ib.) 


CH.  v.]       PRACTICE  OF  PROBATE  COURT.  25 

with  the  terms  of  said  judgment,  or  decree,  by  process  of  fieri 
facias,  issued  by  said  court,  returnable  to  a  term  of  said  court,  not 
less  than  six  nor  more  than  eight  months  from  the  teste  of  said 
writ,  which  process  shall  be  executed  by  the  sheriff  of  the  proper 
county,  upon  the  lands  and  tenements,  goods  and  chattels  of  the 
party  against  whom  the  same  shall  issue;  or,  by  process  of  attach- 
ment against  the  person  of  the  party  against  whom  the  judgment 
or  decree  shall  have  been  rendered :  Provided,  that  no  such  at- 
tachment shall  issue,  until  the  party  against  whom  the  same  is 
prayed,  shall  have  been  cited  to  appear,  at  some  regular  term  of 
the  court,  to  show  cause  why  it  should  not  issue ;  and  if,  upon 
the  service  of  the  citation,  the  party  shall  fail  to  appear,  or  shall 
not  show  good  cause  against  the  issuing  of  the  attachment,  the 
court  shall  issue  a  peremptory  attachment,  commanding  the  sher- 
iff to  imprison  the  person  or  persons  of  the  party,  until  he  or  they 
shall  comply  with  the  judgment  or  decree  of  the  court.  See  sec. 
1,  ante. 

§  11,  The  course  of  proceeding  prescribed  by  the  foregoing 
statutes,  for  courts  of  Probate,  is  analagous  to  that  which  prevails 
in  our  courts  of  Equity;  and  in  most  instances  the  rules  establish- 
ed in  the  latter  courts  may,  whenever  applicable,  be  safely  adopt- 
ed in  the  courts  of  Probate, 

In  the  case  of  Cowden  vs.  Dobyns  &  wife,  our  court  of  Appeals 
decided  that,  "  in  the  absence  of  statutory  directions,  the  mode  of 
proceeding  adopted  by  the  Ecclesiastical  courts  of  England  are 
necessarily  in  force,  in  our  Probate  courts."    5  S,  &  M, 

The  precedents  afforded  by  the  Ecclesiastical  reports,  are  so 
meagre  and  unsatisfactory,  as,  in  few  instances,  to  afford  any  guide; 
but  as  they  conformed,  in  their  practice,  very  closely  to  the  courts 
of  Equity,  this  defect,  in  all  cases,  where  no  positive  precedent, 
derived  from  the  Ecclisiastical  courts,  exists,  may  be  remedied  by 
a  resort  to  the  admirably  digested  system  of  pleading  and  practice 
which  obtains  in  the  courts  of  Chancery.  It  is,  however,  much 
to  be  apprehended  that  the  amalgamation  by  our  Constitution, 
(as  construed  by  our  High  Court,)  in  the  courts  of  Probate,  of 
powers  which  formerly  belonged  to  two  distinct  tribunals,  both  in 
England  and  the  United  States,  without  the  adoption  of  the  rules 
of  practice  belonging  to  either,  will  lead  to  much  perplexity.  In 
4 


S6  PRACTICE  OF  PROBATE  COURT.  [CH.  V. 

the  words  of  Judge  Gaston,  of  North-Carolina,  "the  profession  is 
necessarily  driven  to  adopt  some  mode  which  is,  at  the  same  time, 
analagous  to  the  established  usages,  before  these  changes  were 
made,  and  reconcilable  to  the  state  of  things  induced  by  them. 
This  adaptation  of  old  forms  to  new  laws  is  among  the  most  del- 
icate and  difficult  of  legal  labors.  It  has  not  yet  been  successful- 
ly effected  upon  this  subject,  and  there  is  reason  to  fear,  that  sev- 
eral adjudications  must  be  had,  before  it  can  be  completely  ac- 
complished* 

The  writer  will  not  attempt  to  solve  these  doubts  by  any  theory 
on  this  subject;  but  as  this  work  is  intended  to  present  only  such 
principles  as  are  well  established,  and  not  to  discuss  those  which 
are  mooted,  he  will  confine  himself  to  the  task,  (in  addition  to 
what  has  already  been  presented  in  the  preceding  sections,)  of 
collecting  and  arranging,  under  appropriate  heads,  in  the  subse- 
quent pages  of  this  volume,  such  adjudications  of  the  English 
Courts,  ecclesiastical  and  temporal,  and  of  the  Courts  of  the  Uni- 
ted States,  as  are  relevant  to  the  subjects  under  consideration. 

§  12.  The  same  rules  of  evidence  and  of  property  which  are 
binding  on  courts  of  common  law,  are  equally  binding  on  a  court 
of  Probates,  except  where  different  rules  are  provided  by  statute,  t 
15  Mass.  307. 


♦In  Pennsylvania,  the  principles  of  equity  govern  proceedings  in  the  Orphan's 
court,  and  the  court  may  require  an  accountant  to  render  his  statement  on  oath. 
15  S.  &  R.  66. 

In  New-York,  parole  evidence  is  admissible  to  show  the  regularity  of  proceed- 
ings for  the  sale  of  an  intestate's  estate,  where  it  appears  that  the  records  and 
papers  of  the  court,  pending  the  proceedings,  were  not  properly  kept;  and  the 
presumption  is  thus  raised  that  the  papers  of  the  office  may  have  been  lost.  12 
Wendel,  533. 

tThe  foregoing  chapters  on  the  practice  of  the  Probate  Courts,  have  been  in- 
tended only  to  illustrate  general  rules; — the  details  will  be  more  fully  considered 
hereafter,  in  connection  with  the  various  objects  wEich  they  are  designed  to  ac- 
complish, and  under  appropriate  titles. 


CM.  VI.]  APPEAL.  9t 


CHAPTER  VI. 

APPEAL. 

§  1.  Any  person  who  may  conceive  himself  or  herself  aggriev- 
ed by  any  judgment,  decree  or  order  of  the  Probate  court,  shall 
have  the  liberty  of  appealing  to  the  court  of  Chancery,*  or  Su- 
preme court  of  this  State,  upon  the  appellants  giving  bond  with 
good  and  sufficient  security,  approved  by  said  court,  and  in  such 
security  and  in  such  sum  as  they  shall  direct,  to  the  Judge  thereof, 
conditioned,  that  the  appellant  shall  prosecute  the  said  appeal  to 
effect,  and  perform  the  sentence,  judgment  or  decree,  which  the 
said  court  of  Chancery  or  Supreme  court,  shall  make  therein,  in 
case  the  cause  be  decided  against  him  or  her;  which  bond  may 
be  put  in  suit,  in  the  name  of  said  Judge  of  Probate,  and  the  a- 
mount  received  thereon  applied  as  the  said  Probate  court  shall 
direct  among  those  injured  by  breach  of  the  condition  thereof. — 
If  the  judgment,  decree  or  decision,  or  order,  of  the  Probate  court 
shall  have  been  given  or  made  on  a  summary  proceeding,  and  on 
the  testimony  of  witnesses,  the  party  shall  not  be  allowed  to  ap- 
peal, unless  he  or  she  shall  immediately  notify  his  or  her  intention 
or  request,  that  the  testimony  be  reduced  to  writing.  And  in  such 
case,  the  deposition  shall  be  at  the  cost  of  the  party  in  the  first 
instance,  reduced  to  writing,  and  the  transcript  of  the  whole  pro- 


*So  much  of  the  above  act  as  providcB  for  an  appeal  to  the  Superior  Court  of 
Chancery,  is  virtually  repealed  by  the  act  of  1844,  chap.  7,  sec,  1,  page  95— and  it 
is  further  enacted  that  no  appeal  shall  be  allowed  to  any  other  court,  except  the 
High  court  of  Errors  and  Appeals.     (See  same  act,  sec.  1.) 

It  is  further  enacted,  that  any  person  or  persons  feeling  himself  or  themselves 
aggrieved  by  any  judgment,  decree,  or  final  order,  of  any  Probate  court,  shall  be 
entitled  to  an  appeal  to  said  court  of  Errors  and  Appeals,  as  a  matter  of  right, 
(see  1  S.  &  M.  579,  on  stat.  of  1837,)  at  any  time  within  sixty  days  after  the  pass- 
ing of  any  such  judgment,  decree,  oi  final  order,  on  petition  therefor  to  the  clerk 
of  said  Probate  court:  Provided,  that  such  appeal  shall  not  operate  as  a  stay  of 
further  proceedings  under  such  judgment,  decree  or  final  order,  unless  the  appel- 
lant shall  give  bond,  with  surety  to  be  approved  of  by  the  Judge  of  said  Probate 
court,  in  accordance  with  said  provisions  of  the  said  20th  section  of  the  above 
mentioned  act.  Sec.  2,  of  act  1844,  ch.  7.  By  the  3d  section  of  the  same  act  it 
is  further  provided,  that  "  the  High  court  of  Errors  and  Appeals,  or  any  Judge 
thereof,  in  vacation  may,  on  petition  of  any  party  to  any  judgment,  decree  or finJal 
order,  unless  the  appellant  shall  give  bond  with  sureties  to  be  approved  by  the 
Judge  of  said  Probate  court,  in  such  penalty  as  the  said  High  court  of  Errors,  or 
Jud^e  granting  such  appeal,  shall  prescribe,  conditioned  as  required  by  the  20tb 
section  of  the  above  recited  act.    (See  sec.  9,  supra.) 


28  APPEAL.  [CH.  VI. 

ceeding  relating  immediately  to  the  matter,  shall  be  made  out  by 
the  register  of  said  court,  and  certified  by  him  under  seal,  and 
transmitted  to  the  said  Appellate  court,  by  the  party,  within  30 
days  from  the  date  of  the  decision  or  the  order — otherwise  the  said 
party  shall  lose  the  privilege  of  appeal  *    Sec. 20,  H.&  H.  473. 

And  if  the  decision  of  the  Probate  court  be  in  a  summary  way 
and  on  papers  filed  in  the  court,  no  party  shall  be  entitled  to  ap- 
peal, unless  he  or  she  enters  an  appeal  within  three  days,  and 
transmit  a  certified  copy  of  the  proceedings  as  aforesaid  within 
'  30  days  aforesaid.  But  in  case  there  shall , have  been  plenary  pro- 
ceedings as  aforesaid,  (see  ch.5,  sec.  2)  either  party  may  prosecute 
the  appeal  by  entering  the  same  as  aforesaid,  and  by  transmitting 
a  certified  copy  as  aforesaid,  within  60  days  after  the  decision, 
judgment,  decree,  or  order ;  and  in  the  said  Appellate  court  the 
decree  so  carried  up  shall  stand  for  hearing  or  decision  at  the  term 
next  succeeding  the  transmission  of  the  proceedings.  And  the 
said  court  shall,  at  the  said  term,  or  as  soon  as  conveniently  may 
be,  either  affirm  the  decree,  judgment,  decision,  or  order  of  the 
court  below,  or  direct  in  what  manner  it  shall  be  changed  or  a- 
mended ;  or  may  at  their  discretion  direct  an  issue  or  issues  in  fact 
to  be  made  up  and  tried  by  the  Circuit  or  Superior  court  of  the 
proper  county,  as  in  other  cases,  t  And  when  the  decision  of 
such  Appellate  court,  shall  be  certified  under  the  seal,  by  the 
clerk  of  such  court,  and  transmitted  to  the  Probate  court,  the  said 
Probate  court  shall  proceed  according  to  the  tenor  and  directions 
thereof,  and  the  same  shall  be  final  and  conclusive  between  the 
parties.    How.  &  H.  p.  473,  sec.  20,  ch.  39.  | 


♦The  regular  mode  of  removinfir  a  record  of  the  Orphan's  court  is  by  eertiarari^ 
and  nothing  else  can  stay  the  proceedings  below.    2  Dallas,  190. 

t  When  the  High  court  of  Err.  and  App.  shall  affirm  any  judgment,^na/  order 
or  decree  of  any  Probate  court,  for  the  payment  of  money,  it  shall  be  the  duty  of 
said  High  court  of  Err.  and  Appeals  to  render  judgment  vs.  the  appellant  and  sure- 
ties,  if  any  be  given  for  the  amount  of  money  due  on  such  judgment,  Jinal  order 
or  decree,  at  the  rate  of  ten  per  cent,  until  the  same  be  paid.  Sec.  4,  ch.  7,  act 
of  1844. 

J  By  act  of  May,  1837,  (called  Bession,")  it  is  enacted  that,  "when  any  patty, 
plaintiff  to  any  judgment  or  decree,  rendered  in  any  court  of  this  State,  shall  de- 
sire to  have  such  judgment  or  decree  reviewed  by  the  High  court  of  Errors  and 
Appeals,  he,  she,  or  they,  may  apply  by  petition  to  the  clerl  of  the  court,  where 
•uch  judgment  or  decree  was  made  or  rendered,  for  the  issuance  of  a  writ  of  error; 
which  writ  of  error  it  shall  be  the  duty  of  such  clerk  to  issue,  to  operate  as  a  super- 


CH.  VI.]  APPEAL.  29 

§  2.  The  result  of  a  full  comparison  of  the  foregoing  statutes, 
in  relation  to  an  appeal  from  a  judgment,  decree,  or  order  of  the 
court  of  Probates,  may  be  summed  up  in  the  following  rules : 

I.  The  party  desirous  of  appealing  must  be  aggrieved  by  the 
judgment,  decree,  or  final  order  of  the  court  of  Probates.  7  How. 
106. 

If  a  judgment  be  for  the  benefit  of  a  party,  he  cannot  appeal — 
as  where  assumpsit  was  brought  against  executors  for  money  had 
and  received  for  plaintiifs  by  defendants,  and  not  by  the  testator, 
on  plea  of  non  assumpsit,  the  verdict  was,  that  "defendant  did 
assume,"  &c.,  and  judgment  de  bonis  testatoris,  was  erroneously 
rendered.  This  being  for  the  benefit  of  the  defendants,  and  the 
plaintiff  not  being  dissatisfied,  the  defendants  were  not  allowed  to 
object  to  its  being  so  entered.    2  Call.  514. 

An  administrator  may  appeal  from  a  decree  of  distribution, 
though  not  a  party  aggrieved  within  the  meaning  of  the  act.  4 
Rawle,  268. 

And  if  one  of  two  executors  direct  an  appeal,  writ  of  error  or 
supersedeas,  originally  granted  to  both,  to  be  dismissed,  the  other 
may  proceed  without  him;  and  both  being  before  the  court,  an 
order  of  severance  may  be  made  without  a  summons.  4  Henn. 
&  Munf.  283. 

The  creditor  of  a  spendthrift  may  appeal  from  a  refusal  of  a 
judge  of  Probate  to  order  the  guardian's  bond  to  be  put  in  suit. 
21  Pick.  36.— citing  16  Mass.  524,  and  5  Pick.  61.  (But  in  Miss. 
no  order  being  necessary,  it  would  be  otherwise;    See  post.) 

A  person  appearing  as  attorney  in  fact  for  creditors,  may  appeal, 
though  not  interested  in  the  subject  of  controversy;  4  Munf.  403. 


iedeat,  the  petitioner  or  petitioners  givino;  bond  with  two  or  more  good  and  suffi- 
cient secunties,  to  be  approved  of  by  said  court,  conditioned  in  the  manner  now 
prescribed  by  law.  And  said  clerk  shall  thereupon  issue  a  citation  to  the  adverse 
party,  directed  and  returnable  in  the  manner  now  prescribed  by  law."  The  same 
act  provides  that  "the  security  taken,  may  be  excepted  to  in  vacation,  before  any 
Judge  of  the  High  court,  and  if  such  exceptions  be  sustained,  and  the  security  be 
not  immediately  made  sufficient,  the  writ  shall  cease  to  operate  as  a  stay  of  further 

Eroceedings."  The  phraseology  of  the  above  recited  act  of  1837,  is  sufficiently 
road  and  general  to  include  a  judgment  or  decree  rendered  in  the  court  of  Pro- 
bates; but  if  so,  the  plaintiff  or  defendant  desiring  to  avail  himself  of  its  benefits, 
must  do  so  subject  to  the  conditions  of  the  act  of  1844,  expressly  relating  to  judg- 
ments and  decrees  in  the  court  of  Probates — and  some  of  the  provisions  of  which 
are  directly  in  conflict  with  the  act  of  1837. 


3d  APPEAL.  [CH.  VI. 

But  in  general,  none  but  a  party  having  an  interest  in  the  sub- 
ject can  appeal.  Therefore  an  uncle  or  next  friend  of  a  -non  com- 
pos, cannot,  as  such,  appeal  from  an  allowance  of  the  guardian's 
account.  To  entitle  either  of  them,  he  must  show  that  he  has  an 
interest.  2  Mass.  140.  Therefore,  the  executor  or  administrator, 
in  whom  the  legal  title  to  the  personal  property  of  the  decedent 
has  vested,  and  not  the  heir,  must  appeal  from  any  judgment  af- 
fecting it.    2  Mass.  140;  9  ib.  386;  2  Root,  219;  4  Pick.  441. 

But  the  children  of  a  non  compos,  being  presumptive  hdrs, 
may  appeal — 18  Pick.  1 — because  no  other  person,  having  an  in- 
terest, is  competent  to  appeal.     Ibid. 

But  a  person  under  guardianship  as  non  compos,  may  petition 
to  set  aside  the  letters  of  guardianship,  and  appeal  from  a  decree 
rejecting  such  a  petition.  1  Mass.  543.  The  law  contemplates 
a  time  when  such  person  may  be  restored  to  his  reason,  and  his 
property;  and  he  should  not  be  left  to  friends,  who  through  ig- 
norance, or  inattention,  might  leave  him  in  bondage,  forever.  Ib. 

A  widow,  having  a  greater  interest  in  the  personal,  than  in  the 
real  estate,  of  her  deceased  husband,  may  appeal  from  a  decree 
charging  certain  sums  on  the  personalty,  that  ought  to  be  charged 
on  the  realty.  18  Pick.  285,  and  4  ib.  33.  And  where  intestate 
left  a  widow  and  child,  and  child  died,  and  a  creditor  of  the  fa- 
ther was  made  administrator,  it  was  held,  that  the  widow,  as  the 
child's  mother  and  heir,  was  the  only  person  interested.  4  Pick. 
41,  note.  None  but  a  party  having  a  right  to  administration  can 
appeal  from  a  decree  granting  letters  of  administration  to  another. 
4  Dev.  168.* 

A  trustee,  summoned  as  such,  may  appeal.  8  Pick.  401,  405; 
10  ib.  34,  440;  1  ib.  461. 

A  creditor  of  the  heir,  if  he  has  attached  his  interest,  may  ap- 
peal from  the  allowance  of  a  will  devising  the  real  estate;  but  not 
otherwise.     16  Pick.  264. 

A  creditor  of  a  decedent  testate  or  intestate,  or  of  a  devisee,  if 
his  debt  survives,  has  sufficient  interest  that  administration  should 
be  granted,  to  litigate  that  question.  1  Pick.  71;  4  ib.  33. 

*In  Missouri,  any  person  "  interested  and  aggrieved,"  is  entitled  to  an  appeal, 
but  if  his  interest  is  not  direct,  it  must  appear  clearly  on  the  record  that  he  ii  in- 
terested."   3  Miss.  R.  269. 


CH.  VI.]  APPEAL.  31 

But  a  mere  debtor  to  such  decedent  has  not.  3  ib.  443.  For,  if 
one  debtor  could  so  litigate,  all  could,  and  it  would  be  too  incon- 
venient.   Ibid. 

No  appeal  lies  for  a  creditor,  whose  claim  has  been  disallowed, , 
by  commissioners  on  an  insolvent  estate.    2  Root,  297;  see  also 
4  S.  &  M.  691. 

In  a  contest  about  a  will,  a  person,  who  was  not  a  party  in  the 
county  court,  may  by  becoming  interested  after  an  appeal  to  the 
District  court,  be  admitted,  as  a  party  there,  and  carry  up  the 
cause  to  the  court  of  Appeals ;  but  on  reversing  the  judgment 
such  party  can  recover  only  the  costs  of  the  court  above.  2  Henn. 
&Munf.467. 

On  an  appeal,  from  a  sentence  disallowing  a  will,  the  court 
above  will  not  allow  a  legatee  to  be  substituted  as  appellant  for 
the  executor,  who  propounded  the  will,  in  order  to  get  the  benefit 
of  the  executor's.testimony.  1  Paige,  550. 
•  'No  allowance  of  the  court  below  is  necessary  to  the  validity  of 
an  appeal;  but  some  action  on  it,  subject  to  revision  will  often  be 
necessary.     18  Pick.  1;  22  ib.  11, 12, 13;  4  Ma^s.  107, 108. 

II.  The  proper  place  for  showing  the  interest  of  the  appellant, 
is  on  the  motion  for  appeal.  4  Day,  137.  (In  Mass.  the  claim  of 
appeal  may  be  oral.  4  Mass.  460.) 

Objections  must  be  taken  to  the  pleadings  in  the  Probate  court, 
before  trial  of  the  merits,  or  the  Appellate  court  will  not  enquire 
into  their  regularity.    3  How.  360. 

The  filing  of  reasons,  where  the  claim  of  appeal  is  allowed  to 
be  oral,  within  the  time  limited  for  appeal,  will  be  sufficient.  4 
Mass.  460.  (In  Mississippi,  a  petition  is  required.  Act  of  1844, 
oh.  7,  sec.  2.) 

The  day  of  claiming  the  appeal  is  to  be  reckoned  as  one  of  the 
term  of  limitation.    4  Pick.  167;  2  Watts,  283. 

After  trial  of  the  cause  on  the  merits,  the  court  will  presume 
the  appeal  was  in  time.    2  Day,  12. 

III.  The  record  must  show,  when  sent  up,  that  the  party  ap- 
pealed.   2  Fairf.  247;  1  Overt.  313. 

And,  it  must  also  show,  that  the  court  had  jurisdiction,  by  pro- 
cess served,  or  publication  where  publication  is  authorised.  1  S. 
&  M.  351 — If  not,  the  judgment  is  a  nullity.    Ibid. 


ti  APPEAL.  [CH.  VI. 

The  record  must  also  show  a  judgment  below,  to  give  the  Appel- 
late court  jurisdiction — 3  How.  172 — and  must  show  a  case  suffi- 
ciently certain,  to  enable  the  High  court  to  act  on  it,    1  How.  21. 
,  (Whether  High  court  can  act  on  a  case  sent  up  on  doubts,  see  ib.) 

When  the  record  is  silent  as  to  the  action  of  the  court  below 
the  presumption  is  that  the  court  below  acted  correctly.  1  S.  & 
M.  321;  3  ib.  305.  Where  it  sets  out  the  evidence,  it  must  justi 
fy  the  judgment.  The  judgment  of  every  court,  of  competent 
jurisdiction,  must  be  holden  to  be  correct,  unless  the  error  is  made 
manifest  by  the  record.  1  How.  162.  When  a  motion,  required 
to  be  sustained  by  evidence,  is  overruled  by  an  inferior  court,  the 
record  must  show  that  the  evidence  adduced  was  embodied  in  a 
bill  of  exceptions.  Ib.  (Where  a  bill  of  exceptions  is  not  requir- 
ed, the  record  must  contain  the  evidence.) 

IV.  The  appeal  must  be  entered  above,  at  the  next  term  of  the 
Appellate  court — 6  Mass.  379 — and  a  copy  of  the  record  must  be 
filed  on  the  first  day  of  the  term  to  which  the  writ  is  returnable; 
2  S.  &  M.  443 — if  not,  on  the  defendants  in  error  docketing  the 
case,  it  will  be  dismissed.  Ibid. 

And  a  motion  to  docket  the  cause  and  dismiss  the  appeal,  by 
appellee,  will  be  sustained,  on  a  copy  of  the  decree  below  and 
certificate  of  appeal.  A  complete  record  is  not  necessary  to  sus- 
tain such  motion.    2  Rand.  109. 

But,  where  an  appeal  bond  was  returnable  at  the  December 
term  of  the  court  of  Appeals,  but  the  record  was  not  filed  till  the 
third  day  of  the  January  term,  the  court  overruled  the  motion  to 
dismiss  after  the  record  had  been  filed.  2  How.  817.  The  statute 
(10th  sec.  Supreme  court  law,  rev'd.  code,  151)  providing  for  dis- 
missal is  not  peremptory,  unless  the  party  moving  to  dismiss  has 
complied  with  all  its  provisions.  Ibid. 

If  a  party  dies  after  an  appeal,  and  before  a  return  term,  his 
representatives  are  entitled  to  revive,  and  a  motion  to  dismiss,  for 
want  of  assignment  of  error,  will  not  be  granted,  in  such  case. 
2  How.  817. 

But,  where  appellee  died  after  appeal,  his  administrator  may 
have  appeal  dismissed  without  scire  facias,  it  appearing  from  the 
entry,  that  motion  was  made  by  the  administrator.  1  Hen.  and 
Munf.339.  r         •    . 


CH.  VI.]  APPEAL.  33 

But  in  such  case  the  court  will  not  always  dismiss  an  appeal, 
for  failure  to  deliver  the  record,  during,  or  before  second  term. 
3  Henn.  &  Munf.  269. 

If  accident  or  mistake  prevent  entry  of  the  appeal  at  the  next 
term,  the  petition  asking  leave  to  enter  it  at  a  subsequent  term, 
must  expressly  state  what  the  accident  or  mistake  was.  1  Mass. 
230. 

V.  The  appellant  must  execute  bond. 

The  bond  executed  by  appellant  on  an  appeal  from  the  court 
of  Probates,  must  be  payable  to  the  Judge  of  Probates,  and  not  to 
the  adverse  party.  4  S.  &  M.  99;  9  Conn.  388,  But  now  by  act 
of  1846,  sec.  15,  it  is  provided  that  such  bond  may  be  made  pay- 
able either  to  the  Judge  of  Probate,  or  to  the  adverse  party. 

A  bond  executed  by  the  surety  and  not  by  the  principal,  is  in- 
sufficient. 4  Munf.  323, 104.  So,  a  bond  executed  by  a  stranger 
js  insufficient.  IS.&M.  657;  16  Pick.  203.  An  appeal  can  be 
granted  only  during  the  term  at  which  judgment  was  pronounced 
in  court;  and  court  cannot  allow  an  appeal  during  term  time,  on 
condition  of  bond  being  given  after  the  term.  1  How.  267;  4 
Rand.  460;  6  Munf.  397. 

The  execution  of  an  appeal  bond  is  a  condition  precedent  to 
the  jurisdiction  of  the  Appellate  court.  1  S.  &  M.  657.  But  in 
Mississippi  it  is  matter  of  right,  and  bond  is  only  requisite  to  op- 
erate supersedeas.  See  act  1844,  ch.  7,  sec.  2. 

It  must  be  executed  in  court,  and  cannot  be  approved  in  vaca- 
tion— 1  How.  267 — and  the  court  cannot  delegate  to  the  clerk,  or 
any  other  person,  the  power  to  approve  the  bond.  lb. — And  the 
appeal  bond  must  be  approved  by  the  court,  as  well  as  the  secu- 
rity; and  where  the  court  only  approved  the  security  and  author- 
ised the  bond  to  be  given  at  any  time  within  thirty  days,  it  was 
held  insufficient.  3  How.  75.  But  where  the  court  gave  twenty 
days  to  execute  an  appeal  bond,  and  the  party  gave  it  in  two  days, 
during  the  session  of  the  court,  and  the  security  was  approved  by 
the  court,  and  it  appeared  on  the  record  as  part  of  the  proceed- 
ings, the  appeal  was  sustained.  3  How.  84.  But  see  act  of  1844, 
ch.7,  sec.  1,  p.  95. 
5 


34  APPEAL.  [CH.  VI. 

Appeal  bonds  can  only  be  attacked  for  errors  on  their  face,  or 
non  conformity  to  law.  They  will  be  presumed  to  have  been  ex- 
ecuted by  the  parties  whose  names  appear  to  them ;  and  if  execu- 
ted by  an  attorney,  the  presumption  holds  equally  good.  2  How. 
817. 

An  appeal  bond  must  be  in  the  name  of  all  the  parties,  against 
whom  the  judgment  or  decree  was  rendered.  If  some  of  the  par- 
ties will  not  join  in  the  appeal,  any  one  who  may  desire  a  revis- 
ion of  the  judgment  may  proceed,  by  summons  and  severance, 
on  his  case  only,  and  exempt  himself  from  any  eventual  liability 
for  the  others.     3  How.  43. 

And  if  it  appear  from  the  record,  that  all  the  parties  prayed  the 
appeal,  it  will  be  sufficient  under  the  statute,  though  one  of  them, 
only,  executed  the  bond.  5  How.  638;  7  Cow  en,  428.  It  may 
be  executed  by  the  real  as  well  as  the  nominal  party.  8  Cow.  119. 

Executor  and  administrators,  as  such,  are  not  bound  to  give  the 
appeal  bond,  required  by  the  general  statute.  There  is  a  statute 
which  exonerates  all  executors  and  administrators  from  liability 
beyond  the  assets  of  the  estate.  (H.  &  H.  sec.  38,  ch.  36,  p.  396.) 
They  are  not  liable  to  pay  costs  against  the  estate  out  of  their  own 
funds.  To  require  them  to  give  bond  with  surety,  upon  an  ap- 
peal taken  by  them,  would  frequently  lead  to  a  personal  decree 
against  them,  and  thereby  contravene  the  express  provisions  of 
the  last  named  statute.  An  implied  repeal  of  a  statute  will  not 
be  sanctioned,  unless  it  be  clearly  in  conflict  with  another.  In 
this  instance,  both  statutes  can  have  their  full  eflfect,  by  holding, 
that  the  one  operates  as  an  exception  to  the  general  rule  created 
by  the  other,  and  that  executors  and  administrators,  as  such,  are 
not  bound  to  give  an  appeal  bond.  In  this,  we  do  not  claim  any 
right  to  create  exceptions  to  the  terms  of  a  statute,  but  only  by  a 
fair  exposition  to  give  efficacy  to  an  exception  created  by  the  law 
itself.  A  similar  construction  has  been  adopted  in  several  of  our 
sister  States.  3  Rand.  1.  But  there,  they  met  the  rule,  on  the 
ground  that  the  executor  had  already  given  bond  to  administer 
the  estate  according  to  law ;  and  they  hold  that  a  remedy  exists 
on  that  bond,  if  the  cost  be  not  paid,  and  there  are  assets  for  that 
purpose,    1  S.  &  M.  590;  3  Leigh,  196. 


CH.  VI.]  APPEAL.  35 

And,  upon  the  same  principle,  it  has  been  decided,  that  an  ap- 
pellee cannot  object  to  a  bond  executed  by  applicant  and  docket- 
ed without  objection,  after  the  death  of  the  latter;  because  as  an 
administrator  would,  if  such  objection  were  allowed,  be  compel- 
led either  to  give  bond,  which  he  is  not  bound  to  do,  or  be  depri- 
ved of  his  appellate  rights,  no  such  step  should  be  taken  for  dis- 
mission.    3  Leigh,  196. 

So,  a  person  under  guardianship,  as  non  compos  mentis,  need 
not  give  a  bond  to  prosecute  his  appeal  from  a  refusal  to  revoke 
letters  of  guardianship.  1  Mass.  543.  Because,  having  been  ad- 
judged non  compos,  his  bond  would  be  a  void  act.  It  is  also  un- 
necessary: For  either  the  letters  of  guardianship  will  be  repeal- 
ed, and  the  appellees  entitled  to  no  costs,  (in  which  event  the 
bond  would  be  unnecessary,)  or  the  guardianship  will  be  confirm- 
ed by  the  dismissal  of  the  petition,  and  that  because  the  appellant 
is  decided  to  be  non  compos  mentis — and  then  his  bond  would  be 
void ; — to  which  may  be  added,  that  the  whole  estate  of  the  ap- 
pellant is  in  the  hands  of  the  appellees,  and  they  will,  if  their 
guardianship  continue,  be  able  to  pay  themselves.    lb.  547. 

A  party  becoming  non  suit,  prosecutes  his  appeal  within  the 
words  of  the  statute.  1 1  Pick.  143.  Whether  judgment  be  re- 
covered on  non  suit,  or  verdict  of  a  jury,  is  immaterial.  In  either 
case,  there  would  be  no  breach  of  the  condition  of  the  recogni- 
zance, whether  construed  literally  or  according  to  its  spirit  and 
obvious  intent.  lb.  144;  8  Cow.  131. 

Where  such  non  suit  is  suffered,  the  appellee  must  file  a  com- 
plaint for  affirmation  of  the  decree  and  costs.    5  Mass.  373, 378. 

VI.  Our  next  enquiry  is — From  what  decree  will  an  appeal 
lie? 

In  the  case  of  Green  vs.  Tunstall — 5  How.  638 — ^the  High  court 
of  Errors  and  Appeals  decided,  that  the  "  language  of  the  existing 
act  was  broad  enough  to  include  every  decree  or  order  of  the  court," 
and  that  "the  decree,  though  only  interlocutory,  is  the  subject  of 
appeal."  See  also  2  Wend.  230.  But  where  commissioners  of 
insolvency  have  rejected  a  claim,  and  on  exceptions  to  their  re- 
port the  claim  is  referred  to  referees,  under  the  statute,  (H.  &  H, 


9^  APPEAL.  [CH.  VI. 

410,)  such  order  of  reference,  being  a  mere  interlocutory  order, 
cannot  be  made  the  subject  of  appeal.    4  S.  &  M.  691. 

Query? — As  to  the  eflfect  of  the  act  of  1844,  in  which  the  words 
"any  judgment,  decree,  or  final  order,"  are  used.  The  "language" 
here  used  not  being  as  "broad"  as  that  of  the  act  upon  which  our 
High  Court  rendered  their  decision  in  the  case  of  Green  vs.  Tun- 
stall,  it  is  probable  that  a  mere  interlocutory  order  would  not  now 
be  the  subject  of  appeal.  (See  4  S.  &  M.,  in  which  it  is  decided 
that  an  appeal  does  not  lie  from  an  interlocutory  order  of  the  Pro- 
bate court.)    4S.&M.691. 

An  order  of  the  Probate  court  confirming  the  report  of  the  au- 
ditors, on  the  final  settlement  of  a  guardian's  account,  finding  a 
balance  due  from  a  ward  to  the  guardian,  is  a  final  decree,  from 
which  an  appeal  lies.    6  S.  &  R.  462. 

Unless  the  decree  of  an  Orphan's  court  is  definite,  an  appeal 
does  not  lie.    4  Dall.  160. 

An  appeal  lies  from  a  decree  of  the  Probate  court,  giving  leave 
to  re-introduce  a  will  for  probate.  2  Hay.  165;  lDev-&Batt.  190. 

A  decree,  allowing  money  charged  by  an  administrator,  as  being 
expended  by  him,  in  settling  a  claim  against  his  intestate,  is  sub- 
ject to  revision  on  appeal.    8  Conn.  87. 

An  appeal  lies  in  favor  of  creditors  and  heirs  from  a  decree  of 
a  court  of  Probate,  accepting  a  report  of  commissioners,  as  re- 
spects the  claims  allowed  to  the  administrator,  1  Root,  263;  2 
Root,  32,*  But  an  appeal  in  such  a  case  does  not  lie,  in  fa- 
vor of  one  creditor,  because  another  creditor  is  allowed  too  much. 
2  Root,  297. 

An  appeal  lies  from  a  refusal  to  extend  time  to  creditors  to  pre- 
sent their  claims  vs.  an  insolvent  estate.    6  Pick.  458. 

But  in  this  case  no  decree  of  distribution  had  been  made,  nor 
had  18  months  from  the  grant  of  the  commission  elapsed,  which 
is  the  time  allowed  by  law  in  Massachusetts,  to  keep  the  com- 
mission open.    Ibid.  460. 

In  Mississippi,  the  report  of  the  commissioners  of  an  insolvent 


♦Query — Has  the  High  Court  jurisdiction  of  a  case  sent  up  on  doubt?  1  How.21. 
A  fictitious  case  to  test  a  right  to  do  a  particular  thing,  wilt  not  be  entertained  by 
the  High  Court  of  Errors  and  Appeals.    4  S,  &  M.  689. 


CH.  VI.]  APPEAL.  37 

estate  for  the  settlement  and  allowance  of  claims,  must  be  excep- 
ted to  at  the  term  of  the  Probate  court  to  which  it  is  returnable, 
— 6  How.  524;  1  S.  &  M.  510,  321 — unless  for  some  reasons  the 
previous  order  had  been  void.     1  S.  &  M.  321. 

Commissioners  of  insolvency  may  report  at  any  time  {after  the 
period  of  their  appointment  has  expired,)  within  18  months  from 
the  date  of  their  appointment;  and  their  report,  if  received  and 
allowed  by  the  Probate  court,  will  be  valid.  2  S.  &  M.  287.  And 
if  the  commissioners  fail  to  report  within  the  time  limited,  and 
the  Probate  court  fail,  at  that  time,  to  extend  the  time,  it  may  ex- 
tend it,  at  a  subsequent  term,  if  within  18  months  from  the  grant. 
Ibid.  305. 

No  appeal  lies  from  the  court,  till  settlement  of  final  accounts; 
and,  on  the  appeal,  the  Supreme  court  may  examine  all  excep- 
tions to  prior  accounts.     3  Rawle,  243. 

No  appeal  lies  in  favor  of  a  creditor  because  commissioners  dis- 
allowed his  claim  vs.  an  insolvent  estate.  1  Root,  96.  So,  as  to 
referees  in  Mississippi.    4  S.  &  M.  691. 

An  appeal  does  not  lie  from  an  order,  where  the  granting  of  it 
is  matter  of  discretion  with  the  court.  1  John  Cas.  57;  18  Wend. 
319,  350;  2  Moll.  381.  Therefore,  a  court  of  Probates,  being  clo- 
thed with  a  discretion  in  granting  an  order  for  the  sale  of  the  real 
estate  of  decedents,  when  the  order  is  made,  the  question  of  its 
propriety  should  be  closed.  2  S.  &  M.  326.  Nor  does  appeal  lie 
from  the  refusal  of  Judge  to  refer  claim  rejected  by  commissioners 
of  insolvency.    4  S.  &  M.  691. 

So  an  appeal  does  not  lie  from  the  refusal  of  a  Judge  to  grant 
a  continuance,  because,  allowing  it,  is  a  matter  of  discretion  with 
the  court.    4  How.  230. 

An  appeal  does  not  lie  from  a  decree,  authorising  an  action  in 
the  name  of  the  Judge  of  Probate  on  a  bond,  a  decree  not  being 
necessary  in  such  a  case,  but  only  consent.  But  if  Judge  with- 
holds his  consent,  a  decree  is  proper,  and  an  appeal  will  lie.  8 
Pick.  121;  16  Mass.  528. 

Where  a  party  suffers  a  nonsuit,  an  appeal  does  not  lie,  though 
the  nonsuit  be  occasioned  by  a  wrong  decision  of  the  court  below. 
2  S.  &  M.  519. 


38  APPEAL.  [CH.  VI. 

An  appeal  does  not  lie  from  a  decree  of  the  Orphan's  court,  re- 
specting a  matter  out  of  its  jurisdiction — as,  if  the  decree  be  a- 
gainst  a  surety,  on  the  administration  bond  of  his  principal,  1 
Bailey,  548. 

VII.  How  must  an  appeal  be  brought  up? 

An  appeal  from  the  court  of  Probates,  must  in  all  cases  (except 
where  the  execution  of  a  will  is  concerned,)  be  brought  up  in  the 
same  manner  as  from  other  courts.    7  Bailey's  (So.  Car.)  rep.  203. 

On  an  appeal  from  courts  of  Probate  respecting  a  will,  the  orig- 
inal paper  offered  for  probate,  should  be  brought  up  by  a  writ  of 
Subpa.  duces  tecum.  If  such  paper  cannot  be  obtained,  the  de- 
cree should  not  be  either  affirmed  or  reversed,  but  the  appeal  must 
be  dismissed.    4  Henn.  &  Munf.  91. 

The  applicant  must  make  his  objections  in  the  form  of  a  plea, 
to  which  the  appellee  should  reply.  1  Mass.  335.  But  upon  an 
appeal  from  the  decree  of  the  Probate  court  approving  a  will,  the 
will  is  to  be  proved  as  if  the  question  originated  in  appellate 
court,  and  the  appellee  having  the  affirmative  is  to  open  and  close. 
4  Mass.  593.  If  the  objection  or  plea  is  traversed,  the  issue  is  to 
the  court,  except  where  the  question  is  of  the  testator's  capacity, 
or  fraud  in  procuring  the  will.  1  Aiken,  395.  Every  substantial 
averment  relied  on,  must  be  filed  in  writing,  and  such  as  are  not 
traversed  will  be  considered  as  admitted,  and  treated  as  if  demur- 
red to.     1  Aiken,  273,  395. 

VIII.  On  an  appeal  from  a  decree  of  the  court  of  Probates, 
(accepting  a  return  of  the  commissioners  for  the  division  of  an  es- 
tate,) the  return  is  open  to  every  objection  that  could  legally  have 
been  made  in  the  court  below.  8  Mass.  132.  (Though  this  is  the 
law  in  Massachusetts,  it  does  not  obtain  in  Mississippi,  where  the 
High  Court  is  strictly  appellate.    See  2  How.  21.) 

On  appeal  from  the  court  of  Probate,  the  appellant  is  restricted 
to  the  grounds  stated  in  his  reasons  for  appeal.  4  N.  Hamp.  Rep. 
550*    Day,  137;  1  Mass.  205, 


*In  Massachusetts,  the  appellant  may  advance  new  evidence  and  arguments  in 
support  of  his  reasons. — 18  Pick.  1;  1  Paige.  550.     So  in  Pennsylvania — 3  Dallas, 


CH.  VI.]  APPEAL.  39 

The  appellate  court  can  revise  nothing  not  subject  to  decision 
below.     1  How.  162.* 

If  an  appeal  be  taken  from  every  decree,  the  court  will  go  back 
only  to  the  first  error,  and  confirm  all  the  preceding  decrees.  5 
Day,  216. 

In  Massachusetts,  the  Supreme  court,  on  an  appeal  from  the 
court  of  Probates,  cannot  exercise  its  general  equity  jurisdiction, 
but  is  confined  to  such  decision  as  the  court  below  could  make. 
17  Pick.  383.  (But  in  Mississippi,  as  the  court  of  Appeals  has 
decided  that  the  court  of  Probates  has  equity  jurisdiction  in  rela- 
tion to  subjects  confided  to  them  by  the  Constitution,  the  High 
Court  of  Errors  and  Appeals  may,  it  would  seem,  exercise  its 
equity  power,  where,  from  the  nature  of  the  case,  the  court  of 
Probates  could  have  done  so. 

The  verdict  of  a  jury  will  not  be  disturbed  by  the  court  above, 
where  the  court  below  has  refused  to  set  it  aside,  unless  the  evi- 
dence greatly  preponderates  against  it.  3  Leigh,  523.  And  where 
evidence  clashes,  it  will  be  presumed  by  the  Appellate  court  that 
the  court  below,  which  saw  and  heard  witnesses,  decided  correct- 
ly. 3  Leigh,  436  &  441.  (But  see  Hopkins,  Ch.  rep.  408,  where 
court  ordered  a  jury  to  settle  the  difficulty.) 

If  the  record  states  "the  above  will  was  proved  and  recorded," 
it  will  be  presumed  that  the  will  was  proved  to  have  been  execu- 
ted according  to  its  purport,  and  that  notice  to  the  heirs  was  giv- 
en. 4Bibb,439;  2  J.  J. Marsh, 511;  2Marsh.467;  Litt.  sel.  cas. 
503. 

If  record  shows  no  proof  of  the  execution  of  a  will,  but  shows 
that  the  parties  only  meant  to  contest  the  capacity  of  the  testator, 
the  court  of  Appeals,  concurring  with  the  court  below,  as  to  the 
testator's  sanity,  will  afiirm  the  sentence.    3  Leigh,  523. 


327.  And  so  in  So.  Carolina — 3  M'Cord,475.  But  where  new  evidence  is  offered, 
the  appellant  must  offer  a  satisfactory  excuse  for  not  introducing  it  below.  I  Paige, 
650.  And  in  Pennsylvania,  on  an  appeal  from  the  report  of  commissioners  find- 
ing a  balance  due  from  the  ward  to  the  guardian,  the  Supreme  Court  will  settle 
the  account  as  the  Orphan's  Court  could  do,  and  not  set  aside.  2  Binney,  294. — 
But  it  affords  no  higher  evidence.    7  S.  &  R.  421. 

*In  Kentucky,  on  the  trial  of  will  cases  in  the  Supreme  Court,  on  an  appeal 
from  the  Circuit  court,  the  trial  is  had  upon  the  recora,  without  the  examination 
of  witnesses;  and  the  party  alleging  error  holds  the  affirmative,  and  opens  and 
concludes  the  argument.    5  B.  Monroc^s  R.  59. 


40  APPEAL.  [CH.  VI. 

IX.  What  judgment  will  the  Court  of  Appeals  render? 

On  an  appeal  from  a  decree  granting  administration  to  A.,  the 
court  may  reverse  it  as  to  A's.  appointment,  and  affirm  it  as  to  the 
residue.  In  such  case,  the  court  will  remand  the  cause  to  the 
court  of  Probate,  with  instructions  to  grant  administration  to  B. 
3  Mass.  32;  Charl.  196,  211. 

On  such  appeal,  the  court  may  order  administration  to  be  grant- 
ed to  one  not  originally  a  party.     1  Dev.  &  Batt.  10. 

Where  an  administrator's  representation  of  his  testator's  insol- 
vency was  rejected,  and  a  second  application  which  he  offered  to 
sustain  by  legal  evidence  was  refused,  on  the  ground  of  the  former 
rejection,  the  Supreme  court,  on  appeal,  reversed  the  second  decree 
of  refusal,  and  remanded  the  cause,  with  directions  to  receive  any 
further  evidence  the  appellant  might  advance,  and  to  decree  there- 
on according  to  the  law  and  justice  of  the  case.  6  Mass.  448. 

And  if  the  party  be  prevented,  by  the  management  of  an  ac- 
countant, from  filing  exceptions  to  an  administration  account,  and 
there  be  an  appeal  to  the  Supreme  court,  that  court  will  order  the 
appeal  to  be  withdrawn,  and  the  decree  to  be  remitted,  that  the 
applicant  may  pray  relief  in  the  court  below.    5  Watts,  145. 

In  Mississippi,  (by  act  of  1844,  ch.  7,  sec.  4,)  when  the  Appel- 
late court  affirms  any  decree  for  payment  of  money,  they  are  di- 
rected to  enter  judgment  against  the  appellant  and  sureties,  for 
the  amount  due,  with  interest  from  the  date  of  such  decree  of  the 
court  below,  at  ten  per  cent,  per  annum,  until  paid. 

X.  The  Appellate  court  must  consider  whether  the  facts  on  the 
record  give  jurisdiction.    3  How.  34. 

If  court  above  dismiss  a  case  for  want  of  jurisdiction,  it  cannot 
give  any  judgment  for  costs.  1  S.  &  M.  583.  The  party  appeal- 
ing would  be  liable  in  another  form.  Ibid.  It  is  too  late  in  the 
court  of  Appeals,  to  object  to  the  commission  of  the  judge  below. 
2Nott&M'C.27. 

XI.  Upon  reversal  of  the  judgment  of  court  of  Probates  for 
mistake  or  error  of  the  Judge,  no  costs  are  allowed.  1  Root,  151. 

Executors  and  administrators  are  not  liable  for  costs  beyond  as- 
sets.   1  S.  &  M.  590. 


CH.  VII.]  WILLS.  41 

Administfators  appealing  for  sufficient  cause  from  a  decree  of 
the  Judge  of  Probates,  on  their  accounts,  are  not  liable  to  pay  in- 
terest— 1  Pick.  550 — Unless  the  appeal  be  vexatious,  or  without 
reasonable  cause.     1  Pick.  530.* 

If  after  appeal  the  executor  or  administrator  receives  interest 
on  any  sum  contained  in  his  account,  it  is  an  independent  matter, 
for  which  a  new  account  may  be  required  of  him.  1  Pick.  530. 

If  an  executor  offers  a  will  for  probate,  but  the  Supreme  court 
reverses  their  decision,  the  executor  is  not  liable  for  costs.  4  Call, 
423. 

Q:^In  the  note  on  page  27,  4th  line  from  the  bottom,  after  the  word  "order," 
the  following  omitted  lines  should  come  in : 

"of  any  Probate  court  of  this  State,  grant  an  appeal  to  said  High  court  of 

Errors  and  Appeals,  at  any  time  within  three  years  from  the  date  of  such  judgment, 
decree,  ox  final  order,  provided  said  court  or  judge  shall  be  of  opinion,  from  an  in- 
spection of  the  record,  that  there  is  reasonable  ground  for  such  appeal.  But  such 
appeal  shall  not  operate  tostay  further  proceedings  under  such  judgment,  decree, 
or  final  order," 


CHAPTER  VIL. 

OF    WILLS NATURE    AND   BFrECT   OF.. 

§  1 .  The  law  attaches  to  the  ownership  of  all  property,  the 
right  to  dispose  of  it,  either,  during  the  life  of  the  owner,  by  deed 
or  delivery,  or  by  will  to  take  effect  after  the  owner's  death.  "A 
man's  right  to  dispose  of  his  estate  by  will,  is  as  broad  as  his  right 
to  dispose  of  it,  by  deed  before  his  death."  By  chancellor  Buck- 
ner,  in  case  of  Ross  vs.  Duncan — 1  Freeman's  Chan.  Rep.  587. 

A  will  is  an  instrument  by  which  a  person  makes  a  disposition 
of  his  property,  to  take  effect  after  his  decease,  and  which  is,  in 

•The  statute  of  Massachusetts  gives  discretionary  power  as  to  costs  to  the  court 
of  Probates; — but  as  no  costs  are  allowed  in  those  courts,  the  Supreme  court 
do  not  generally  allow  them,  unless  the  appeal  is  on  frivolous  pretences,  or  on 
reasons  that  the  appellant  ought  to  have  known  to  be  unfounded.    12  Mass.  536. 

6 


42  WILLS.  [CH.  VII. 

its  nature,  ambulatory  and  revocable  during  his  life.  This  am- 
bulatory quality  forms  the  characteristic  of  wills ;  for  though  a 
deed  may  postpone  the  enjoyment  of  property,  till  the  death  of 
the  disposer,  yet  in  this  case  such  postponement  results  from  the 
express  terms,  and  not  from  the  nature  of  the  instrument.  Per- 
kin's  Jarman  on  Wills,  11. 

Technically,  a  will  embraced  only  land,  and  a  testament  only 
personalty ;  but  in  the  course  of  time,  both,  by  use,  have  become 
synonimous,  and  include  both  real  and  personal  property.  Bums. 
Eccl.  law.  Tit.  wills. 

§  2.  The  power  of  bequeathing  personal  estate  is  coeval  with 
the  first  rudiments  of  law,  but  the  power  to  devise  freehold  lands 
of  inheritance  was  originally  conferred  by  the  statute  of  32  Henry 
8th,  and  the  explanatory  act  of  34  and  35  Henry  8th;  2  Inst.  33; 
Perk.  Jarm.  on  wills,  27.  Previous  to  this  act,  lands  could  only 
be  devised  through  the  instrumentality  of  uses.    2  Inst.  33. 

In  consequence  of  the  statutes  of  Charles  2d,  in  England  (and 
also  in  Mississippi  and  other  States  of  the  Union  where  similar 
statutes  prevail,)  three  incidents  must  concur  to  constitute  a  valid 
will,  except  in  certain  cases: 

1st.  It  must  be  written. 

2d.  It  must  be  signed  by  the  testator  himself,  or  by  some  other 
person  in  his  presence,  and  by  his  direction. 

3d.  It  must  be  attested  by  credible  witnesses  in  the  presence  of 
the  testator,  unless  it  be  written  wholly  by  the  testator  himself. 

A  devise  of  land  must  be  reduced  to  writing  during  the  testa- 
tor's life; — if  declared  by  words  only  and  reduced  to  writing  after 
his  death,  it  would  be  only  a  nuncupative  will,  which  cannot  pass 
real  estate.  6  Serg.  &  R.  452;  3  Lomax,  24.  And  such  will  could 
not  pass  even  personal  estate,  unless  accompanied  by  all  the  so- 
lemnities required  by  our  statute.*  (How.  &  Hutch,  ch.  36,  sec. 
6,  p.  387.) 


•Inasmuch  as  any  one,  not  prohibited  by  law,  may  make  a  valid  and  effectual 
will — 3  Lomax,  8 — and  as  every  will,  solemnized  according  to  law,  and  made  by 
a  person  not  laboring  under  any  disability,  is  valid  and  effectual,  it  will  be  only 
necessary  to  ascertain,  who  are  incapable  of  making  a  valid  will?  This  will  be 
Hone,  after  we  have  ascertained,  what  is  a  valid  will? 


CH.  vii.]  wills:  4E 

§  3.  All  wills  could  be  made  orally  in  England,  till  the  statute 
of  29  Charles  2d. — which  to  prevent  fraud  and  perjury,  required 
them  (except  in  certain  specified  cases)  to  be  in  writing,  signed 
by  the  testator  and  attested  by  witnesses. 

In  Mississippi,  (and  the  United  States  generally,)  a  statute  an- 
alagous  to  the  English  statute,  has  been  enacted.  Our  statute, 
transcribed  from  the  statute  of  Virginia,*  and  passed  in  1821, 
provides,  that  "every  person  aged  21  years,  if  a  male — or  aged  18 
years,  if  a  female,  or  upwards,  being  of  sound  and  disposing 
mind,  and  not  a  married  woman — shall  have  power,  at  his  or 
her  will  and  pleasure,  by  last  will  and  testament  or  codicil  in 
writing,  to  devise  the  estate,  right,  title  and  interest  in  posses- 
sion, reversion  or  remainder,  which  he  or  she  hath,  or  at  the  time 
of  his  death  shall  have  in  or  to  lands,  tenements,  or  hereditaments, 
or  rents  charged  upon,  or  issuing  out  of  them — or  goods  and'chat- 
tel«,  or  personal  estate  of  every  description  whatsoever,  so  as  such 
last  will  and  testament  be  signed  by  the  testator,  or  by  some  other 
person  in  his  presence  and  by  his  direction ; — and  moreover,  if 
not  wholly  written  by  himself,  or  herself,  be  attested  by  three  or 
more  credible  witnesses  in  case  of  the  devise  of  real  estate — and 
one  or  more  credible  witnesses  in  case  of  the  devise  of  goods  and 
chattels  and  personal  estate,  in  presence  of  the  testator — saving, 
however,  to  the  widows  of  testators  their  dower  in  any  estate  real 
or  personal,  so  devised.    How,  &  H.  ch.  36,  sec.  2,  p.  385. 

§  4.  Under  this  statute,  a  will  written  wholly  by  the  testator 
himself,  is  valid,  without  witnesses,  and  will  be  sufficient  to  con- 
vey both  real  and  personal  estate. 

In  such  case  the  hand-writing  of  the  testator  may  be  proved  by 
any  person  having  a  knowledge  of  it.  4Dana,221;  lM'Cord,430. 
And  this  knowledge  may,  it  seems,  have  been  gained  by  reading 
his  papers  after  his  death.  2  Leigh,  249;  6  Rand.  316;  2  Marsh. 
74. 

§  5.  A  will  need  not  have  a  seal — 1  Mass.  460;  4  ibid.  462;  1 
Dana,  102;  1  M'Lane.TO;  1  Ball.  94;  1  Ley.  &  R.  256;  2  Black. 
355 — unless  a  seal  is  required  by  the  statute.  Ibid. 


•Our  statute  being  a  transcript  of  the  Virginia  statute,  the  decisions  in  that  State 
will  be  copiously  introduced  in  such  parts  of  this  work  as  relate  to  wills. 


44  WILLS.  [CH.  Vllr 

It  was  once  held  that  sealing,  was  equivalent  to  signing  a  wilL 
— 3  Lev.  1;  2  Str.  764. — But  this  opinion  has  been  repeatedly  o- 
verruled,  as  opening  too  wide  a  door  to  fraud.  1  Wilson,  313;  1 
Ves.Ju.  13;  17Ves.459. 

And  though  it  once  was  also  a  subject  of  doubt,  whether  the 
mark  of  a  testator  or  witness,  who  can  write,  would  satisfy  the 
statute,  (Roberts,)  yet,  of  late,  a  mark  under  such  circumstances 
has  been  held  sufficient.  6  Rand.  33.  Seealso3Nev.&Per.228; 
8  Adol.  &  Ell.  94,  cited  in  Perk.  Jarm.  69;  5  John.  144.  But  in 
New-Jersey,  such  mark  is  not  the  actual  signing  required  by  the 
statute.    7  Halst.  70. 

§  6.  If  the  testator's  name  be  written  by  himself  on  any  part  of 
the  will,*  it  will  be  a  sufficient  signing  within  the  statute — 3  Lev. 
1;  1  Repts.  Const.  Ct.  (So.  Car.)  345 — though  on  several  pieces 
of  paper.  See  5  Moore,  484,  and  S.  C.  2  Brod.  &  Bing.  650.— 
But  it  must  appear  in  such  cases  that  all  the  sheets  of  paper  were 
produced  at  the  time  the  witnesses  attested  it;  and  in  the  absence 
of  contrary  proof  this  fact  will  be  presumed,  from  circumstances. 
3  Burrows,  1773;  1  Black,  rep.  407;  3  Humph.  378;  6  Rand.  33. 

But  in  Kentucky  such  signature  will  be  sufficient,  only,  when 
the  testator  intended  that  as  his  signature,  and  did  not  intend  to 
sign  at  the  foot.  Dana,  2,  3.  This  qualification  of  the  rule  is 
sustained  by  the  decisions  in  Doug.  241;  4  Ves.  197,  n.;  9  ib.  249; 
1  Mer.  503;  2  Virga.  cases,  553.t  Such  also,  it  is  presumed,  would 
be  the  doctrine  in  Mississippi,  under  our  statute. 


*See  Freem.  538;  1  Eq.  cas.  ab.  403,  pi.  9,  S.  C.  Pre.  ch.  184;  3  Lev.  86;  2 
Ves.  Sen.  454;  9  Ves.  249. 

tin  Virginia,  it  is  decided,  that  where  the  testamentary  paper  is  not  nibscribed 
by  the  testator,  and  on  the  face  of  it  there  appears  to  have  been  an  intention  on 
the  part  of  the  writer  to  make  some  other  devise,  or  do  some  other  act,  which  is  not 
done,  it  will  be  considered  as  wanting  that  character  o(  finality  and  condusivenest 
of  intention,  essential  to  a  will,  and  ought  not  to  be  admitted  to  probate  as  such. 
As,  if  the  will  directs  the  debts  of  the  testator  to  be  paid  out  of  funds,  afterwards 
appropriated,  and  the  will  contains  no  such  appropriation; — or  if  the  will  state  a 
list  01  debts  shall  accompany  the  paper,  and  none  such  accompany  it;  or  if  it  ex- 
press an  intention  to  appoint  an  executor,  and  none  be  named;  or  if  certain  be- 
quests be  interlined  and  others  underscored,  icithout  being  erased,  thereby  showing 
a  suspended  intention  in  regard  to  those  bequests,  either  of  striking  them  out  or 
not,  as  circumstances  may  require, — the  omission  of  a  date,  want  of  an  usual  con- 
clusion and  an  abrupt  breaking  off  of  the  will,  are  all  circumstances  tending  to 
show  that  it  is  not  completed,  or  that  the  testator,  (having  had  full  time  to  con- 
clude it,  and  not  having  been  arrested  by  sickness  or  death,)  has  abandoned  hit 
original  intention,  and  that  therefore  it  is  no  will.    2  Virga.  Cas.  553. 


CH.  VII.]  WILLS.  45 

In  New- York,  the  statute  requires  the  testator's  signature  to  be 
placed  at  the  end  of  the  will.  4  Wendel,  168.  So,  in  Arkansas. 
Rev.  St.  ch.  157,  sec.  4. 

If  signed  by  another,  and  acknowledged  by  the  testator  as  his 
signature,  it  will  be  sufficient.  4  Dana,  1.  (But  by  the  statute 
of  Mississippi,  it  must  have  been  done  in  the  testator's  presence.) 
When  testator  signs  at  the  foot,  it  may  be  by  his  own  hand,d  an- 
other's.   4  Dana,  2,  3;  2  Virga.  cases,  553. 

Where  the  signature  of  the  testator  was  effected  by  another  per- 
son's guiding  his  hand,  with  his  consent,  and  heafterwards  ac- 
knowledged it,  it  was  held  to  be,  in  point  of  law,  the  act  of  the  tes- 
tator. 4  Wash.  C.  C.  R.  262.  In  re,  Field,  3  Curt.  (Prer.)  752. 

§  7.  In  Tennessee,  it  has  been  decided  that  if  a  writing  be  im- 
perfect, and  such  imperfection  result  not  from  an  abandonment  or 
change  of  the  testator's  intention,  but  from  the  act  of  God,  which 
defeated  its  completion,  it  may  be  established  as  a  valid  will.  2 
Humphreys,  202. 

But  the  presumption  of  law  is  against  such  a  paper  as  a  will, 
and  it  must  also  appear  that  so  far  it  is  the  entire  will  of  the  de- 
ceased, and  is  so  far  not  repugnant  to  his  wishes,  but  carries  them 
into  effect.  Ibid.  See  also  3  Dev.  N.  C.  rep.  19 — in  which  it  is 
decided  that  this  presumption  may  be  rebutted  by  proof. 

In  Alabama,  the  same  doctrine  is  virtually  adopted.  See  2  S. 
&P.454.* 

The  cases  from  Tennessee  and  No.  Carolina,  are  reconcilable 
with  the  decision  from  Virginia  only  on  the  ground — 1st.  that 
the  imperfection  must  arise  from  the  act  of  God,  and  not  from  the 
change  of  testator's  intention;  and  2d.  that  in  both  cases  the  legal 
presumption  arising  out  of  such  imperfection  is  against  the  will, 
but  may  nevertheless  be  rebutted  by  proof. 

In  No.  Carolina,  it  has  been  decided  that,  "where  the  will  con- 


•In  this  case,  the  testator  applied  to  an  attorney,  to  prepare  a  will  under  certain 
instructions,  by  which  he  designed  particularly  to  provicle  for  a  dependant  sister; 
and  the  will  being  prepared,  was  exhibited  to  him;  and  in  the  presence  of  the 
attorney  and  witness  he  made  several  important  alterations,  and  seemed  satisfied 
with  the  draft  thus  altered,  and  gave  the  same  to  the  attorney  to  be  copied;  and 
the  same,  after  being  copied,  was  returned  to  him  to  be  executed,  and  he  said 
"he  would  examine  and  consider  of  it;"  and  after  his  death,  the  same  copy  unal- 
tered, was  found  in  his  possession — it  was  held  to  be  inadmissible  to  probate.  2 
S.  &  P.  454. 


46  WILLS.  [CH.  VU. 

tains  a  clause  of  attestation,  the  want  of  attestation  is  not  conclu- 
sive evidence  of  abandonment  of  the  testator's  intention  to  make 
a  will.    4  Devereaux,  301. 

§  8.  On  this  subject  the  English  authorities,  though  apparently 
variant,  have  been  reconciled  thus. 

If  the  intention  to  devise  be  certain,  and  the  requisitions  of  the 
statute  be  verbally  complied  with,  the  law  will  imply  an  inten- 
tion in  the  testator  to  conform  to  the  statute,  and  by  coupling  the 
fact  and  intention,  will  give  effect  to  the  instrument,  as  in  the  case 
of  Lemayne  vs.  Stanley.    3  Lev.  1;  3  Lomax. 

But  although  the  statute  be  verbally  complied  with,  yet  if  the 
express  intention  of  the  testator  be  to  carry  the  requisitions  of  the 
statute  into  formal  execution,  but  an  accident  intervenes  to  pre- 
vent him,  courts  cannot  by  construction  supply  the  defective  ex- 
ecution, as  in  the  case  of  Right  vs.  Price — Doug.  241;  Rob.  124; 
Powell  on  dev.  77, 78;  5  Moore,  484;  2  Brod.  &  Bing.650. 

§  9.  No  particular  form  is  essential  to  a  valid  will — 2  Nott  & 
M'Cord,  531;  1  ib.  517,  409,  430;  6  Dana,  257,  357— Provided, 
the  formalities  of  law  are  complied  with.  Ib.  and  1  Desaus.  554. 
And  provided  it  leave  no  part  of  the  testator's  intention  unex- 
pressed.   6  Watts,  353. 

It  matters  not  whether  the  amount  bequeathed  be  in  words  or 
figures,  or  whether  the  will  be  written  in  full  or  in  notes  usual  or 
unusual,  so  it  be  free  from  ambiguity.  2  Lomax,  24.  It  may  be 
printed,  if  signed  by  the  testator.    2  M.  &  S.  286;  2  Ch.  Bl.  376.* 

And  a  will  may  consist  of  several  instruments  of  different  na- 
ture and  form,  all  constituting  one  will.  1  Will,  ex'rs.  (2d  Am.  ed.) 
59.  A  will  of  husband's  property  signed  by  both  the  husband 
and  wife,  is  a  valid  will  of  the  husband  alone.    2  Fairf.  303. 

A  will  may  be  in  the  form  of  a  deed,  provided  it  is  intended 
not  to  operate  till  after  the  testator's  or  donor's  death.  1  Phill.  1, 
and  cases  cited;  10  Yerger,  321.  Or,  of  a  bond,  2  Hagg.  235. 
Or,  marriage  settlement.  1  Phill.  218;  2  Hagg.  554.    Or,  of  letters. 


•The  words  "give"  or  "devise"  are  not  necessary — "release"  is  sufficient. — 
Bendl.  30.  So,  of  an  estate  in  mortgage  or  equity  of  redemption.  2  P.  Wm.  236. 
A  devise  of  'Hhe  income  of  lands"  is  a  devise  of  the  land  itself.  9  Mass.  372 ;  1 
Ashm,  136. 


CH.  VII.]  WILLS.  47 

2  Phill.  575;  1  Hagg.  130;  1  John.  Ch.  153;  6  Gill.  &  John.  25. 
Or,  an  endorsement  on  a  bond  or  note.  4  N.  Hamp.  repts.  434; 
6  Dana,  30;  4  Serg.  &  R.  545.  Or,  of  drafts  on  bankers.  3  Phill. 
317.    See  also  4  Dessauss.  617. 

But  it  is  essentially  requisite  that  the  instrument  should  be 
made  to  depeiid  on  the  death  of  the  testator,  as  necessary  to  con- 
summate it.  For  where  a  paper  directs  a  benefit  to  be  conferred 
inter  vivos,  (by  himself  on  another,  both  living,)  with  express  or 
implied  reference  to  the  death  of  the  party  conferring  it,  it  cannot 
be  regarded  as  testamentary.  1  Wms.  ex'rs.  (2d  am.  ed.)  59;  10 
Yerger,  321;  4  N.  Hamp.  R.  34;  4  S.  &  R.  545. 

§  10.  The  animus  testandi  need  not  appear  on  the  face  of  the 
instrument.  1  M'Cord,  430;  2  Leigh,  249 — See  also  3  Lomax.  ch. 
4,  sec.  1. 

This  intention  may  appear  on  the  face  of  the  instrument,  or 
from  extrinsic  evidence.    1  M'Cord,  409;  2  Nott  &  M'Cord,  531. 

Nor  is  it  necessary  that  the  testator  should  have  known  that  he 
was  performing  a  testamentary  act.  2  William's  ex'rs.  (2  Am.  ed.) 
59.  Nor  that  he  should  have  intended  to  perform  a  testamentary 
act.  Ih.  For  it  is  a  settled  rule,  that  if  the  paper  contains  a  dis- 
position of  the  property  to  be  made  after  death,  though  it  were 
meant  to  operate  as  a  settlement  or  deed  of  gift,  or  a  bond,  though 
not  intended  to  be  a  will  or  other  testamentary  instrument,  but  as 
an  instrument  of  a  different  shape, — yet  if  it  cannot  operate  in  the 
latter,  it  nevertheless  will  in  the  former  character.  2  Wms.  ex'rs. 
(2d  Am.  ed.)  59.  If  the  instrument  show,  by  its  contents,  a  "pos- 
thumous destination  of  the  maker's  property,  it  will  operate  as  a 
will,  and  any  contrary  title  or  designation  he  may  give  it,  will  be 
disregarded.  Perk.  Jarm.  12;  4Desaus.617;  lCh.cas.248;  S.C. 
1  Mod.  117;  1  Ves.  Snr.  127.  If  the  instrument  create  any  ben- 
efit to  be  enjoyed  during  the  life  of  the  maker,  it  is  not  a  will. — 
1  Ves.  127;  4  Leon.  166 — and  other  cases  cited  in  Perk.  Jarm.  13. 
See  also  2  Ves.  Jnr.  204,  and  3  My.  &  K.  32,  reviewing  for- 
mer cases,  cited  ibid.  Nor  is  an  instrument,  though  containing 
some  technical  expressions  indicating  a  testamentary  character,  a 
will,  if  it  depends  on  acts  to  be  done,  or  which  may  be  done  by 
the  person  named  in  it,  in  the  life-time  of  the  maker.  2  Desaus. 
92. 


48  WILLS.  [CH.  VII. 

§  11.  But  an  instrument  is  not  necessarily  a  will,  because  it 
cannot  operate  in  the  form  given  to  it.  2  Wm's.ex'rs.  (2d  Am.ed.) 
59. 

The  true  principle  is,  if  there  is  proof,  either  in  the  paper  itself, 
or  from  evidence  dehors — 
1st.  That  it  was  the  interdion  of  the  writer  of  the  paper  to  convey 

the  benefits  by  the  instrument  which  would  be  conveyed  by  it 

if  considered  as  a  will.* 
2d.  That  the  death  of  the  maker  was  to  give  oflfect  to  the  instru- 
ment. 

Then,  whatever  its  form,  it  will  operate  as  a  will.  lb.  See  2 
Nott&M'Cord.  531. 

And  this  distinction  exists  in  the  consideration  of  papers  which 
^re  in  their  terms  dispositive,  and  those  which  are  of  an  equivo- 
cal character,  viz:  The  first  will  be  entitled  to  probate,  unless  they 
are  proved  not  to  have  been  written  animo  testandi — whilst  in  the 
latter,  animus  must  be  proved  by  those  claiming  under  them. — 
Ibid,  cited  in  note  to  Perk.  Jarm.  12.t 

And  even  where  an  instrument  is  not  intended  as  a  will  by  the 
writer,  nor  executed  by  him  as  a  will,  yet  he  may  adopt  it  as  such 
afterwards.    2 Nott&M'Cord, 531;  9Connt.l02;  1  Mass.  158. 

§  12.  An  instrument  having  some  features  of  a  will  and  some 
of  a  deed,  executed  by  a  native  of  Scotland  about  to  remove  to  this 


*To  ascertain  this  intention,  recourse  may  be  had  to  several  modes: — 
Ist.  Where  it  is  expressed  in  the  writing  itself. 
2d.  Where  the  paper  is  in  the  formof  a  letter,  or  memorandum  or  deed,  or  in  any 

other  form  containing  an  actiuil  disposition  of  his  estate  to  commence  after  his 

death — this  though  not  formally  a  will,  is  such  in  effect  and  operation. 
3d.  When  the  intention  is  dubious,  and  cannot  be  understood  from  the  face  of  the 

paper,  but  onlvby  the  introduction  of  paro/  evidence.     1  M'Cord,  409,  517;   2 

Murphy's  No.  Car.  R.  133;  2  Nott  &  M'Cord,  531. 

tThe  following  letter  was  held  to  be  no  will — "  I  am  desirous  to  see  you,  and 
would  be  glad  you  would  come  down  immediately,  as  it  is  my  wish  that  you  should 
heir  every  thing  I  have  at  my  death.  But  I  fear,  unless  you  come  (quickly,  I  shall 
be  defrauded  out  of  every  thing  by  a  person,  I  once  took  to  be  a  friend.  I  know 
you  can  save  the  property  for  me,  and  all  I  desire  is  the  use  of  it  my  lifetime,  and 
it  is  probable  that  will  not  be  long,  I  would  write  more  fully  on  the  subject,  but 
can  explain  more  to  you  when  I  see  you."  It  was  proved  that  the  deceased  did 
not  believe  this  letter  to  be  his  will.  1  M'Cord,  517.  See  also  6  Dana,  257;  4 
Dann,  3 ;  3  Yeates,  324.  Where  A.  executed  an  instrument  under  seal  declaring, 
that  in  consideration  of  B's.  care  of  him  during  illness,  he  acknowledged  himself 
indebted  to  her,  and  that  his  executors  should  pay  her  a  certain  sum  in  one  year, 
which  instrument  was  delivered  to  B, — It  was  nHd  that  this  was  not  a  will,  but  an 
^jbligation.     3  Yeates,  389.     See  also  6  Binney,  490. 


CH.  VII.]  WILLS.  fif 

country  to  take  possession  of  an  estate  here,  and  made  to  prevent 
disputes  in  case  of  his  death,  is  contingent,  and  cannot  operate  to 
defeat  the  claims  of  his  wife,  whom  he  married  subsequently  in 
this  country.     1  Desaus.  543;  5  Conn.  317;  7  Conn.  315. 

An  instrument  limited  by  a  condition  as  to  its  operation,  can- 
not be  admitted  to  probate  as  a  will,  after  failure  of  the  contin- 
gency, on  the  happening  of  which  it  was  to  take  effect.  2  Watts 
&  Serg.  145. 

§  13.  The  legal  presumption  is  that  the  testator  read  the  will 
and  knew  the  contents  thereof.     1  No.  Car.  rep.  87. 

Unless  he  was  blind,  could  not  read,  or  some  fraud  or  conceal- 
ment was  used.  3  Wash.  C.  C.  Rep.  484;  3  Marsh.  145;  3  Leigh, 
436,  32. 

And  in  N,  Carolina  it  has  been  held,  that  in  the  case  of  a  blind 
and  illiterate  man  who  makes  a  will,  the  law  presumes  him  to 
have  been  acquainted  with  its  contents,  and  does  not  require  that 
it  should  have  been  read  to  him  in  the  presence  of  the  attesting 
witnesses,  provided  it  be  otherwise  duly  executed.  2  Dev.  291. 
Seealso2B.&P.  N.R.415;  3  Wash.  C.  C.  580;  3  Leigh,  32.* 

But  if  the  testator  wrote  the  will  himself,  and  a  codicil  be  af- 
terwards prepared  by  another,  it  must  be  proved  that  the  testator 
read  it  himself,  or  that  the  whole  of  it  was  read  to  him  before 
he  signed  it.    6  Call,  90. 

§  14.  If  a  will  be  not  wholly  written  by  the  testator  himself,  it 
will  be  valid  only  when  the  testator  has  signed  it  in  the  manner 
set  forth  in  the  preceding  sections,  and  caused  it  to  be  attested 
by  three  credible  witnesses  in  case  of  the  devise  of  real  estate-r- 
and of  one  credible  witness  in  case  of  the  devise  of  personal  es- 
tate, in  the  presence  of  the  testator  and  by  his  direction. 

It  is  also  to  be  noted,  that  a  will  charging  land  with  legacies 
bequeathed  by  the  testator,  must  be  solemnized  in  like  manner 
as  a  will  conveying  the  land  itself.    4  Mass.  421;  4  Pick.  417. — 


*In  Pennsylvania,  his  decided  that,  where  a  wiH  is  not  signed  by  the  testator, 
(the  law  of  Penn'a.  not  requiring  a  will  to  be  signed  by  the  testator — 6  S.  &  R  452) 
and  is  not  in  his  own  handwriting,  it  must  be  proved  by  two  witnesses,  that  he 
knew  its  contents.  6  S.  &  R.  489.  And  where  special  instructions  for  drawing 
a  will  are  proved  by  two  witnesses,  and  a  will  is  drawn  conformably  thereto  in 
the  t^ptator's  lifetime,  though  he  is  preven^d  by  extreme  illness  frotn  executiqg 
the  sapo,  it  is  a  gpod  will  aeeording  to  the  statute  of  1705.     I  Yeatea,  87. 

i 


50  WILLS.  [CH.  VII. 

So,  of  a  will  devising  a  term  of  years  out  of  the  inheritance.  2 
Atk.  272;  2  Ves.  179;  1  Bro.  C.  C.  60;  1  P.  Wms.  422. 

But  a  charge  on  real  estate,  by  a  will  duly  executed,  in  aid  of 
legacies,  will  extend  to  legacies  bequeathed  by  a  codicil  not  so 
executed.  1  Abr.  Eq.  C.  409;  1  Ves.  &  Be.  446;  18  Ves.  156;  6 
Ves.  560;  2  Atk.  268;  IP.  Wms.  423;  Ambler,  556;  Ram.  assets, 
110;  3Lomax,46.  The  reason  is,  that  charging  real  estate  for 
such  purpose,  is  equivalent  to  directing  it  to  be  converted  into 
personalty,  and  applied  as  part  of  testator's  personal  estate  and  in 
aid  thereof.     8  Ves.  49;  3  Lomax,  46. 

But  when  the  charge  is  originally  on  the  real  estate,  and  ex- 
empts the  personalty  from  its  liability  to  be  first  applied  to  pay- 
ment of  debts  or  legacies,  a  legacy  given  by  an  unattested  will 
or  codicil  will  not  be  a  charge  on  the  real  estate  of  the  testator, 
charged  by  his  duly  attested  will.  3  Lomax,  46.  So,  where  a 
charge  on  land  in  payment  of  future  legacies  is  not  general,  but 
limited  to  particular  legacies,  none  others  will  be  charged  on  the 
land.  lb.  47 — citing  various  cases — and  lb.  48. 

§  15.  But  a  will  "of  the  rest  of  the  testator's  property,"  with  a 
schedule  of  the  personal  effects,  is  good  as  to  the  personalty,  tho' 
not  so  executed  as  to  convey  real  estate.  3  Pick.  374;  21  ib.  98.  But 
in  Mississippi,  such  will  must  have  one  witness,  to  have  that  eifect. 

Whether  it  was  the  intention  of  the  testator  that  a  paper  pur- 
porting to  dispose  of  real  and  personal  estate,  should  operate  as 
a  disposition  of  one,  unless  it  can  take  effect  as  to  both,  is  a  ques- 
tion of  fact  for  the  jury.  4  Dev.  302.  But  a  court  of  Probate  on 
the  offer  of  a  will  for  probate,  acts  as  a  jury,  and  may  draw  any 
conclusion  a  jury  could.     3  Leigh,  442. 

§  16.  A  will  need  not  be  signed  by  the  testator  in  the  presence 
of  witnesses.  2  Ves.  Sn.  455;  3  Curt.  (Prer.)  551,  607;  4  Kent. 
(5th  ed.)  515,  516;  3  Marsh.  146. '^\*" 

An  acknowledgment  or  recognition  by  the  testator,  of  his  sig- 
nature, express  or  implied,  in  presence  of  the  attesting  witnesses, 
is  equivalent  to  actual  signing.  17  Pick.  373;  4  Kent.  (5th  ed.) 
515,516;  1  Metcalf, 349;  3Bibb,494;  4Dana,3;  Perk.  Jarm.71. 

No  particular  form  of  acknowledgment  is  necessary,  provided 
it  amounts  in  substance  to  the  declaration  that  the  instrument 
is  the  last  will  and  testament  of  the  testator.    26  Wendell,  325. 


CH.  VIL]  wills.  $1 

The  subscribing  witnesses  must  know  it  at  the  time  of  its  exe- 
cution, to  be  a  will,  and  must  also  know  that  the  testator  under- 
stands it  to  be,  and  meant  to  execute  it  as  a  will.  26  Wend.  325. 
If  so  stated  in  the  attestation  clause,  the  presumption  will  be  that 
the  testator  did  declare  it  to  be  his  will,  unless  the  witnesses  re- 
collect affirmatively  and  testify  that  the  attestation  clause  was  not 
read  and  understood  at  the  time  of  the  execution  of  the  testament. 
Ibid.  Attesting  means  more  than  barely  subscribing  names  to 
the  paper.  It  implies  a  knowledge  of  publication,  and  of  the 
facts  necessary  to  a  legal  publication.  1  B.  Munroe,  1 17;  2  Maine, 
438;  1  Mass.  258.  In  England,  "if  the  testator  knows  the  instru- 
ment to  be  his  will — produces  it  to  three  persons  and  asks  them 
to  sign  the  same — intending  that  they  shall  sign  it  as  witnesses — 
and  they  subscribe  their  names  in  his  presence,  and  return  the 
same  identical  instrument  to  him — it  is  an  acknowledgment  in 
fact,  though  not  in  words,  to  the  three  witnesses  that  the  will  is 
his."    3  M.  &  Pay,  689;  S.  C.  6  Bing.  310;  5,M.  &  P.  316;  S.  C. 

7  Bing.  457;  1  Cramp.  &  Mees.  440. 

These  decisions  place  beyond  doubt,  the  rule  previously  estab- 
lished, that  a  testator's  acknowledgment,  implied  or  express,  in 
the  presence  of  the  attesting  witnesses,  that  an  instrument  is  his 
will,  is  equivalent  to  the  signing  required  by  the  statute.  See 
Perk.  Jarm.  on  wills,  73 — "Courts  must  look  to  what  is  done,  and 
not  to  what  is  said  only." — 3  Lomax,  32,  citing  1  Cr.  &  M.  140; 
2  Tyr.  73,  and  other  cases;  see  also  17  Pick.  373,  380. 

In  New- Jersey,  actual  signing  is  required.  2  Harrison,  86 — and 
in  New- York,  the  statute  requires  actual  signing — or  a  positive 
declaration  of  the  testator,    8  Paige,  488. 

§  17.  A  mark  has  been  decided  to  be  a  sufficient  attestation — 

8  Ves.  185 — but  it  should  be  avoided.    Perk.  Jarm.  73;   see  also 

5  John.  144,  in  which  the  witness  marked  his  initials.  In  the 
case  of  Chaffee  vs.  Baptist,  M.  C.  N.  Y.  Jan'y.  1843,  attestation 
by  mark  was  held  good,  although  the  statute  required  each  wit- 
ness to  subscribe  his  name.  It  is  also  a  good  attestation  in  So. 
Carolina.  1  Hills,  Ch.  R.  266 — And  in  Louisiana — 9  Louis.  512; 
1 1  ib.  251 ;  4  Kent,  (5th  Am.  ed.)  514,  note  (d.)    See  also  8  Adol. 

6  Ell.  N.  S.  94;  3  ib.  117.  (In  Pennsylvania  a  will  need  not  ba 
signed  by  witnesses — 1  Dallas,  102,  by  statute.) 


5^  WILLS.  [CH.  VIU 

§  18.  It  has  been  decided  that  witnesses  miist  not  sign  before 
the  signature  of  the  testator  is  affixed.  3  Curt.  (Prer.)  648.  But 
in  Kentucky,  it  is  settled,  that  the  order  of  time  in  which  the  tes- 
tator and  witnesses  subscribe,  is  not  material.  1  B.Munroe,  117. 

§  19.  It  is  not  necessary  that  the  witnesses  should  subscribe  in 
the  presence  of  each  other.  lMetcalf,349;  4Kent.(5Am.ed.)516; 
3  Leigh,  436;  2  Ch.  cas.  109;  Free.  Ch.  184;  2  Atk.  176;  3  Lo- 
max,  40 — And  they  may  sign  at  different  times.  2  Haywood,  411; 

1  Rand.  131;  3  Lomax,  40. 

But  if  a  will  be  signed  by  two  witnesses,  and  a  codicil  by  a 
third,  such  attestation  is  not  sufficient.  3  Lomax,  40;  4  Desaus. 
Ch.  312;  see  also  6  Yerger,  423.  But  both  must  sign  in  the  prei* 
ence  of  the  testator.  1  Iredell,  561.  And  each  should  attest  ev- 
ery part.  2  Haywood,  523.  It  may  be  signed  before  one  and  aC* 
knowledged  before  another.     1  Murphy,  176. 

§  20.  No  particular  form  of  words  is  essential  to  constitute  art 
Attestation.     Perk.  Jarm.  74. 

The  memorandum  subscribed  by  witnesses  need  not  mention 
their  having  subscribed  it  in  the  presence  of  the  testator,  though 
this  fact  must  be  proved  orally,  if  the  will  is  contested.  Ibid.— 
citing  Comyn,  531;  2  Str.  1109;  8  Vin.  ab.  128;  pi.  14;  Willes,  1; 

6  Dow.  202.  And  where  the  death  of  the  witnesses  prevent*  ac- 
tual proof,  a  compliance  with  the  statutory  requisitions  in  all  its 
parts,  will  be  presumed,  even  though  not  expressed  in  the  meill* 
orandum  subscribed  by  them.    2  Str.  1109. 

^.  21.  To  constitute  "presence,"  the  testator  should  be  men- 
tally capable  of  recognizing  the  act  performed— for  otherwise,  hh 
mere  corporal  presence  will  not  suffice.  Doug.  241, — cited  in 
Perk.  Jarm.  75.  And  the  testator  must,  moreover,  be  actually 
conscious  of  the  transaction  in  which  the  witnesses  are  engaged. 
762^.— citing  4  Kent,  (5  ed.)  516;  1  P.  Wms.  740. 

If  testator  be  where  he  might  see  the  witnesses  subscribe,  it  is 
sufficient.    76.— See  also  1  Metcalf,  349;   3  Harris  &  M'H.  462; 

7  Har.  &  John.  61;  5  Har.  &  John.  480;  5  Monroe,  202— citing 
various  authorities — as  if  it  be  in  the  same  room.  lb.  and  2  Salk. 
688 — or  in  another  room,  if  where  the  testator  could  see  them.  lb. 
— and  1  Bro.  Ch.  cas.  99;  Carthew,  81; — see  also  3  Russel,  443; 

2  Carr  &  Payne,  488;  1  Leigh,  6.    So,  though  not  in  the  same 


Olf.  VH.]  WILLS.  *58 

house,  if  testator  could  see  them.  1  Bro.  Ch.  cas.  99;  S.  C.  Dick, 
586. 

But,  it  is  to  be  observed  that  an  attestation  in  the  same  room, 
IB  prima  facie,  in  the  testator's  presence — if  in  another  room,  it 
is  prima  facie  not  in  his  presence.     1  Leigh,  6. 

§  22.  But  mere  contiguity  of  the  places  occupied  by  the  testa- 
tor and  the  witnesses  will  not  suffice,  if  the  testator's  view  of  the 
proceeding  of  the  witnesses  be  necessarily  obstructed.  Perk.  Jar. 
76— or  if  from  his  actual  position  he  could  not  see  them — Ibid. 
— although  in  the  same  room.  1  Leigh,  6,  22;  1  Mau.  &  Selw. 
294;  2  Salk.  688;  1  P.  Wms.  740;  2  Carr.  &  Pay.  488;  3  Har.  & 
M'H.  457;  Doug.  241.* 

It  is  immaterial  whether  the  absence  of  the  witnesses  was  oc- 
casioned by  necessity,  or  volition,  or  the  solicitation  of  the  testa- 
tor.   1  P.  Wm.  239,  cited  in  Perk.  Jarm.  78. 

Where  it  is  not  proved  in  what  part  of  the  room  the  attestation 
was  made,  it  will  be  presumed  that  the  most  convenient  spot  was 
used,  and  the  ordinary  position  of  a  table  probable  to  have  been 
used,  will  be  considered.     3  Russ.  444. 

§  23.  The  witnesses  must  see  the  whole  will.  If  it  be  on  sev- 
eral sheets,  and  all  are  in  the  room  when  the  last  is  executed  and 
attested,  it  would  be  a  good  will; — but  if  either  of  the  sheets  was 
not  in  the  room,  it  would  be  otherwise.  But  the  jury  must  pre- 
sume that  all  the  sheets  were  in  the  room,  unless  the  contrary  be 
proved.  3  Burr.  1773;  1  Black,  rep.  407.  And  the  witnesses 
need  not  sign  each  and  every  sheet  of  paper,  but  only  the  last.  3 
Burr.  1773.  t 

§  24.  The  testator  must  publish  his  will  by  doing  some  act 
which  indicates  his  intention  that  the  writing  shall  be  regarded 
as  his  will,  and  shall  operate  as  such.  3  Lomax — citing  3  Atk. 
161;  7  Taunt.  361. 


•In  case  of  a  blind  man,  it  is  sufficient  if  the  witnesses  subscribe  in  the  same 
room  with  him,  or  in  another  room,  where  if  not  blind,  he  might  see  them — if 
done  at  his  request — and  if  it  appear  satisfactorily  to  the  Court,  that  he  knew  its 
contents,  and  intended  the  testamentary  disposition  contained  in  it.   3  Leigh,  32. 

t  The  effect  of  a  codicil  duly  executed,  upon  a  will  not  duly  executed,  to  whioh 
the  codicil  refers,  will  be  hereafter  considered  under  the  head  of  "Codto/." 


•M  WILL — NUNCUPATIVE.  [CH.  VIII, 

The  words  "signed  and  published  as  my  will,"  are  a  sufficient 
publication.  1  Cora.  R.  196.  So  the  delivery  of  a  deed  as  a  will. 
Ibid.  So  if  the  words  "sealed  and  delivered"  are  put  above  the 
place  where  witnesses  are  to  sign.  4  Burn's  Eccl.  law,  116;  1 
Cr.  &  Mee.  171. 

§  25.  A  publication  may  also  be  inferred  from  circumstances, 
and  have  the  same  force  as  if  expressed.  Pow.  on  dev.  90,  95; 
4  Burn's  Eccl.  law,  114;  Com.  R.  197,  cited  in  3  Lomax  dig.  42. 
As,  for  example,  the  signing  and  acknowledging  before  witness- 
es, and  calling  for  their  attestation.    2  Marsh.  73. 

§  26.  A  compliance  with  all  the  requisitions  of  the  statute,  is 
considered  a  publication.  1  Tuck,  Com.  pt.  2,  p.  294;  see  also 
Rob.  wills,  308,  309,  392;  1  Rand.  192;  2  Leigh,  256. 

The  custody  of  a  will  of  personal  estate  is  sufficient  publica- 
tion— 1  Wms.  on  Ex'rs.  (2d  Am.  ed.)  p.  50,  c.2,  s.  1 — whether  the 
custody  be  that  of  the  testator  or  of  a  confidential  friend.  Perk. 
Jarm.  on  wills,  91.  But  it  is  otherwise,  if  it  be  in  the  custody 
of  one  interested  in  its  contents,  especially  if  the  depositary  trans- 
mits the  document  anonymously  to  some  party  interested  in  main- 
taining its  validity.    Ibid. 


CHAPTER  VIII. 

WILLS NUNCUPATIVE. 

§  1.  A  nuncupative  will  or  testament,  is  where  the  testator 
without  any  writing  doth  declare  his  will  before  a  sufficient  num- 
ber of  witnesses,  and  is  called  nuncupative,  i.  e.  naming,  because 
when  a  man  makes  a  nuncupative  will,  he  must  name  his  execu- 
tor, and  declare  his  whole  mind  before  witnesses.  And  a  nuncu- 
pative testament  is  of  as  great  force  and  efficacy,  (except  for  lands, 
tenements,  and  hereditaments,)  as  a  written  testament.  This  kind 
of  testament  is  commonly  made  when  the  testator  is  very  sick  and 
past  all  hope  of  recovery.  Swinb.  on  wills,  38,  ch.  12;  Shep.  T. 
399. 


CH.  VIII.]  WILL — NUNCUPATIVE.  fi5 

^*'  §  2.  The  unqualified  allowance  of  nuncupative  wills  was  found 
productive  of  the  greatest  fraud,  and  it  became  necessary  to  sub- 
ject them  to  very  strict  regulations.  Accordingly  the  statute  of 
Charles  2d  was  passed,  requiring  certain  formalities  to  be  obser- 
ved, without  the  observance  of  which  this  species  of  will  should 
not  be  allowed  to  take  effect.     3  P.  Wms.  355.* 

§  3.  In  Mississippi  a  similar  statute  has  been  enacted,  by  which 
it  is  declared  that,  "no  nuncupative  will  shall  be  established  un- 
less it  be  made  in  the  time  of  the  last  sickness  of  the  deceased  at 
his  or  her  habitation,  or  where  he  or  she  has  resided  for  ten  days 
next  preceding  his  or  her  death,  txctpt  where  such  person  is  ta- 
ken sick  from  home,  and  dies  before  his  or  her  return  to  such  hab- 
itation;— nor,  where  the  value  bequeathed  exceeds  one  hundred 
dollars,  unless  it  be  proved  by  two  witnesses  that  the  testator  or 
testatrix  called  on  some  person  present  to  take  notice  that  such 
is  his  or  her  will,  or  words  of  the  like  import.  (H.  &  H.  ch.  36, 
sec.  6,  p.  387.)  And  after  six  months  have  elapsed  from  the 
time  of  speaking  the  intended  testamentary  words,  no  testimony 
shall  be  received  to  prove  a  nuncupative  will,  unless  such  words 
or  the  substance  thereof,  shall  have  been  reduced  to  writing  with- 
in six  days  after  speaking  the  same.  (Same  act,  sec.  7.)  And  no 
probate  of  any  nuncupative  will  shall  be  taken,  or  letters  testa- 
mentary granted  thereon,  till  after  the  expiration  of  fourteen  days 
from  the  decease  of  the  testator  or  testatrix,  nor  until  the  widow, 
if  any,  and  next  of  kin  if  resident  in  the  State,  have  been  sum- 
moned to  contest  the  same,  if  they  think  proper,  t 

§  4.  Since  the  passage  of  the  foregoing  act,  no  nuncupative  will 
can  be  established  unless  the  following  prerequisites  concur : 


*In  Massachusetts,  only  soldiers  in  active  military  service,  or  mariners  at  sea, 
can  bequeath  their  personalty  by  a  nuncupative  will.  I  Perk.  Jarm.  on  wills,  90, 
notel.     So,  in  New-York.     Ibid. 

In  Ohio,  a  nuncupative  will  may  pass  real  estate.     10  Ohio.  462. 

In  Mass.,  N.York,  Vermont,  Del.,  Va..  S.Cnr.,  R.  Isl.,  Mich.,  Ark.,  Wise, 
MisBO.,  the  same  formalities  are  required  in  wills  of  personal  as  of  real  estate. — 
1  Perk.  Jarm.  on  wills,  90,  note  2. 

In  Tennessee,  two  witnesses  are  required  to  !|  will  of  chattels,  but  they  need 
not  sign  the  will.     6  Yerg.  425.  ' 

In  Penn.  the  same  number  of  witnesses  is  required  to  wills  of  real  and  personal 
estate.     1  Dall.  278;  4  Kent  (5  Am.  ed.)  516,  518. 

t  See  act  of  1846— and  6  S.  &  M. 


&6  WILL NUNCUPATIVE.  [CH.  VIII. 

I.  It  must  be  proved  to  have  been  made  in  the  last  sickness  of 
the  deceased. 

By  these  words,  "  last  sickness,"  is  meant  the  "  last  extremity" 
— 20  John.  502 — or  where  the  testator  was  overtaken  by  sickness, 
and  was  not  able  to  make  a  will  in  writing.  lb.  and  5Littel,  113j 
4  Rawle,  46. 

In  Tennessee,  it  has  been  held,  that  where  the  testamentary 
words  were  uttered  on  Monday,  and  the  testator  died  on  the  fol- 
lowing Friday,  the  will  was  established.    4  Humph.  342. 

In  Kentucky,  (in  a  recent  case,)  it  was  decided,  that  upon  re- 
quisite proof,  a  paper  not  perfected  as  a  written  will,  may  be  es- 
tablished as  a  nuncupative  will,  where  its  completion  was  pre- 
vented by  act  of  God,  or  by  any  other  cause  than  an  intention  to 
abandon  or  postpone  its  consummation.    3  B.  Munroe,  163. 

II.  A  nuncupative  will  must  also  have  been  made  at  the  hab- 
itation of  the  deceased,  or  where  he  or  she  resided  for  ten  days 
next  preceding  his  death,  except  where  such  person  is  taken  sick 
from  home  and  dies  before  his  return  to  his  habitation. 

III.  Where  the  value  bequeathed  exceeds  $100,  the  will  must 
be  made  in  the  presence  of  two  witnesses,  and  it  must  be  proved 
by  two  witnesses  that  the  testator  called  on  some  one  present  to 
take  notice  that  such  is  his  or  her  will,  or  words  of  the  like  im- 
port. 

A  nuncupative  will  may  be  made  not  only  on  the  proper  mo- 
tion of  the  testator,  but  on  the  interrogation  of  another.  Swinb.  39. 
But  the  interrogation  must  not  be  made  by  a  suspicious  person, 
or  be  importunate  to  have  the  testator  speak.  Ibid.  112.  In  such 
case,  it  is  to  be  presumed,  that  the  testator  did  say  "yea"  rather  to 
deliver  himself  from  the  importunity  of  the  demandant,  than  up- 
on intent  to  make  his  will.     Ibid. 

But  if  the  person  making  such  motion  be  not  any  way  suspect- 
ed, and  it  appear  withal,  by  some  conjectures,  that  the  sick  per- 
son had  a  desire  to  make  his  will,  as  if  he  send  for  his  friend, 
who  being  come  unto  him  asketh  him,  "whether  he  make  this  or 
that  man  his  executor?"  to  which  the  sick  man  answereth  "yea!" 
in  this  case  the  testament  is  good.     Ibid.  113. 


CH.  VIII.]  WILL — ^NUNCUPATIVE.  ^ 

No  precise  form  of  words  is  required,  nor  is  it  material  wheth- 
er the  testator  speak  properly  or  improperly,  so  that  his  meaning 
be  apparent.  But  it  is  not  sufficient  for  a  testator  to  leave  a  sound 
on  the  ears  of  his  witnesses,  unless  he  leave  some  understanding 
also  of  his  will  and  meaning.    Ibid.  354. 

The  American  decisions  agree,  in  the  main,  with  the  princi- 
ples above  set  forth. 

In  Kentucky,  it  was  decided  in  the  case  of  Hare  vs.  Bryant, 
that  "under  the  statute  of  1797,  requiring  among  other  things,  to 
render  a  nuncupative  will  valid,  that  the  testator  should  have 
called  on  some  one  present,  to  take  notice  or  bear  testimony  that 
such  is  his  will,  or  words  of  the  like  import" — if  it  was  proved 
sufficiently,  what  the  meaning  and  intention  of  the  testator  was, 
it  would  be  absurd  that  her  ignorance  of  this  formality  should 
defeat  her  intention. 

In  North-Carolina,  it  is  decided,  that  persons  introduced  to 
prove  a  nuncupative  will,  must  have  been  called  on  specially  by 
the  testator  to  bear  witness  what  he  was  saying,  and  if  the  words 
were  dra^vn  from  the  testator  by  a  person  interested  in  establish- 
ing the  will,  the  words  will  not  constitute  a  valid  nuncupative 
will.    2  Murphy,  350, 

In  Virginia,  it  is  decided,  that  it  is  essential  to  a  nuncupative 
will,  that  the  deceased,  at  the  time  of  speaking  the  alleged  words, 
had  a  present  intention  to  make  his  will,  and  spoke  the  words 
with  such  intention ;  and  distinctly  indicated  that  intention  by 
calling  on  persons  present  to  take  notice  or  bear  testimony  that 
such  is  his  will,  or  by  saying  something  tantamount  in  substance, 
and  indicating  plainly  that  the  words  spoken  were  designed  to  be 
testamentary.    3  Leigh,  140. 

In  Tennessee,  it  is  decided,  that  the  leading  object  of  the  stat- 
ute of  1784,  as  to  the  special  requirements  to  bear  witness,  or  the 
rogatio  testium,  is,  doubtless,  to  distinguish  between  a  valid 
nuncupative  will,  and  casual  conversation  by  one  in  his  illness 
on  the  subject  of  his  property,  and  to  guard  against  the  latter  be- 
ing imposed  on  the  court  as  testamentary.  But,  it  is  not  neces- 
sary for  such  purpose  for  the  testator  to  quote  the  very  words  of 
the  statute.  If  he  intends  to  perform  a  testamentary  act,  it  is 
8 


5$  WILL — NUNCUPATIVE.  [CH.  VlIL 

sufficient  for  him,  by  intelligent  act  and  language,  to  invoke  their 
special  attention  and  attestation  to  what  he  intends  to  say  or  has 
said ;  as  if  he  say  to  them,  "  I  wish  to  dispose  of  my  effects,"  and 
then  goes  on  to  make  the  factum  of  such  disposition,  the  court 
cannot  say,  the  statute  has  not  thereby  been  complied  with.  4 
Humph.  342— (Dodson's  will.) 

But  in  South-Carolina  it  has  been  decided,  that  when  the  de- 
ceased on  his  death-bed  said,  "  he  gave  all  his  personal  property 
to  his  sister  Jane,"  and  being  asked  if  he  wished  any  of  his  rela- 
tions to  have  any  of  his  property,  replied, — "no,  it  is  my  sister 
Jane's,  and  she  may  do  as  she  pleases  with  it" — these  words  were 
held  insufficient  for  a  nuncupative  will.     1  M'Cord,  518. 

IV.  If  in  reducing  such  testamentary  words  to  writing,  a  part 
be  omitted,  the  residue  may  be  good.    2  Hen.  &  Munf.  91. 

Both  witnesses  must  be  present  at  the  same  same,  and  hear 
the  same  declaration,  to  make  a  nuncupative  will  good  under  the 
statute — 10  Yerger's  repts.  501 — otherwise,  they  cannot  prove  the 
factum.    Ih. 

y.  The  witnesses  required  by  the  statute  to  prove  a  nuncupa- 
tive will,  must  be  those  competent  according  to  the  common  law: 
and  if  incompetent  from  interest,  a  release  will  render  him  com- 
petent.   3  No.  Car.  R.  40. 

The  rule  is,  that  whoever  is  not  disabled  by  law,  shall  be  ad- 
mitted.   Swinb.  344. 

In  Maryland,  a  nuncupative  will  for  83,236  was  admitted  to 
probate  on  the  testimony  of  the  wife  of  one  of  the  legatees,  who 
had  released  his  interest,  she  being  one  of  the  witnesses.  3  Harr. 
&  John.  208. 


OH.  IX.J  CODICIL.  0 

CHAPTER  IX. 


CODICIL. 


§  1.  The  next  species  of  will,  is  a  Codicil — i.  e.  a  supplement 
to  a  will,  forming  part  of  it,  and  explaining,  altering,  adding  to, 
or  substracting  from  the  disposition  of  such  will.  Swinb.  14;  2 
Bl.  500. 

For  the  effect  of  a  codicil  in  republishing  a  will,  see  post,  Tit, 
republication, 

§  2.  Every  person  capable  of  making  a  will,  may  also  make  a 
codicil — and  whoever  cannot  make  a  will,  cannot  make  a  codicil. 
Swinb.  14. 

§  3.  At  common  law,  a  codicil  might  be  either  written  or  un- 
written. Swinb.  14.  But  since  the  passage  of  the  statute  of  frauds, 
it  would  seem  impossible  for  a  codicil,  not  in  writing,  to  be  es- 
tablished, for  the  purpose  of  affecting  a  previous  will, — not  as  a 
codicil  to  a  nuncupative  will,  because  that  can  only  be  made  in  ex- 
tremis, and  is  itself  the  last  declaration  of  the  testator — and  not 
as  a  codicil  to  a  written  will,  because  by  the  statute,  (How.  &  H. 
eh.  36,  s.  3,  p.  386,)  it  is  provided,  that  no  devise  so  made,  nor 
any  clause  thereof  shall  be  revocable,  but  by  the  testator  or  testa- 
trix destroying,  cancelling,  or  obliterating  the  same,  or  causing  it 
to  be  done,  in  his  or  her  presence,  or  by  a  subsequent  will,  codicil 
or  declaration  in  writing. 

§  4.  A  codicil  must,  therefore,  possess  all  the  solemnities  re- 
quisite to  constitute  the  will  which  it  is  intended  to  operate  on. 
5  Pick.  112;  9  ib.  350;  15  ib.  388;  14  Mass.  208;  lP.Wms.344; 
Doug.  244;  1  Ves.  Jr.  11;  Gilbert's  dev.  115. 

But  a  person  may,  by  codicil,  in  the  form  of  a  nuncupative  will, 
dispose  of  personal  estate,  not  embraced  in  his  will  of  a  prior  date. 
Com.  dig.  Dev.;  Raym.  334.    See  7  How.  636, 

§  5.  It  was  once  supposed  that  a  distinction  existed  between  a 
codicil  and  devise  in  this  respect ;  that,  in  case  of  their  being  a 
devise  in  the  same  will,  or  in  two  different  wills  of  the  same  date, 
of  the  same  property,  to  two  different  persons,  both  would  be  void. 
But,  if  the  same  thing  happened  in  a  codicil,  or  in  two  codicils 


CODICIL.  [CH.  IX. 

of  the  same  date,  the  different  devisees  should  divide  the  thing 
between  them.  Swinb.  15;  1  Vern.  30;  Plow,  539.  But  in  the 
case  of  2  Atkyns,  374,  the  Lord  Chancellor  said,  that  "  the  result 
of  what  Swinburne  says  is  this — that  if  the  same  thing  be  given 
to  two  persons,  they  shall  take  as  joint-tenants,  unless  there  is 
something  to  indicate  and  prove  the  intention  of  the  testator  to 
revoke  and  vary  the  devise."  And  that  "  in  case  of  a  simple  leg- 
acy, as  if  a  man  gives  a  horse  to  A  in  the  first  part,  and  in  the  lat- 
ter gives  the  same  horse  to  B — the  latter  is  a  revocation  of  the 
former  legacy,  and  therefore  Swinburne  is  mistaken  in  point  of 
law."  In  the  same  case  he  adds — "  No  certain  rule  is  laid  down 
as  to  the  construction  of  devises,  but  they  must  depend  on  their 
particular  circumstances."  Applying  these  rules  to  this  case,  he 
decided,  that  "where  a  testator  gives  his  real  and  personal  estate 
to  A  and  B,  equally  between  them,  and  on  the  death  of  one  of 
them,  to  James  Ulrick  in  fee — with  a  few  pecuniary  legacies,  and 
charges  his  real  estate  with  the  payment,  if  the  personal  estate 
should  not  be  sufficient,  and  by  his  will  declared  that  he  gave 
all  the  rest  and  residue  of  his  personal  estate  to  his  uncle  Leonard 
Collins'  three  daughters — the  latter  was  a  revocation  of  the  for- 
mer, and  the  daughters  of  Leonard  Collins  were  entitled  to  the 
personal  estate."  2  Atkyns,  372,  376 ;  Roper  on  Rev.  27 — See 
also  3  Monroe,  76;  3  J.  Marshall,  251—1  Hill's  Ch.  rep.  367.— 
In  the  latter  case  it  is  decided  that  where  there  are  two  incon- 
sistent bequests  of  the  same  property,  the  last  will  revoke  the 
first. 

§  6.  A  codicil  may  be  annexed  to  a  will,  actually  or  construc- 
tively. It  may  not  only  be  written  on  the  same  paper,  or  affixed 
to  or  folded  up  with  the  will,  but  may  be  written  on  a  different 
paper,  and  put  in  a  different  place ;  and  it  may  be  annexed  to  a 
devise  of  real  or  personal  estate.    Peters  d.  vol.  15,  402,  (note  *.) 

A  codicil  will  refer  to  the  last  will  in  date,  if  no  date  is  men- 
tioned.   4  Ves.  615. 

§  7.  In  a  question  as  to  validity  of  codicil,  the  party  contesting 
probate,  is  not  confined  to  enquiry  respecting  the  testator's  sanity 
and  signature,  but  he  may  prove  fraud  in  obtaining  the  signature. 
6  Call's  R.  90.    And  if  the  codicil  was  written  by  a  perscm  other 


CH.  X.]  REVOCATION  OF  WILLS.  il 

than  the  testator,  it  must  appear  that  it  was  read  to  or  by  the  tes- 
tator before  signing.    Ibid.  90. 


CHAPTER  X. 

REVOCATION    OF    WILLS. 

§  1.  No  will  can  be  revoked  (in  Mississippi)  except  by  the  tes- 
tator or  testatrix,  destroying,  cancelling,  or  obliterating  the  same, 
or  causing  it  to  be  done  in  his  or  her  presence,  or  by  a  subsequent 
will,  codicil,  or  declaration  in  icriting,  made  as  aforesaid.  (H.  & 
H.  ch.  36,  sec.  3,  p.  386.) 

The  statutes  of  most  if  not  all  of  the  United  States,  provide  for 
revocation  of  wills,  by  burning,  cancelling,  &c.,  in  language  sim- 
ilar to  that  of  the  English  statute.  4  Kent,  (5th  ed.)  520,  521, 
note. 

§  2.  A  will  can  only  be  revoked  by  the  act  of  the  testator,  or  by 
its  destruction  or  cancellation,  by  his  direction  or  sanction — 5  B. 
Monroe,  60 — and  in  his  presence.  (See  act,  H.  &  H.  ante.)  1 
Jarm.  on  wills,  128. 

And  such  revocation  of  a  good  subsisting  will,  can  only  be  ef- 
fected by  proof  of  another  will  existing  at  the  time  of  the  testator's 
death  revoking  the  former,  or  by  proof  that  he  cancelled  the  lat- 
ter will,  revoking  all  former  ones  with  a  mind  to  die  intestate. 
2  Ball.  289;  14  Mass.  208;  ib.421;  Roper  on  wills,  28;  2Nott& 
M'Cord,  482.  If  the  revocation  be  a  postscript  to  a  second  will, 
it  will  remain  in  force,  though  the  second  will  be  destroyed,  if 
the  postscript  remain  uncancelled.    3  Hen.  &  Munf.  502. 

§  3.  As  the  mere  existence  of  a  will  without  knowledge  of  its 
contents,  is  not  allowed  to  disinherit  the  heir  or  interrupt  the  reg- 
ular course  of  descent — (see  Gilb.  on  Dev.  115,  and  Cowp.  92) — 
So,  it  is  equally  necessary  that  the  contents  of  a  subsequent  will 
should  be  known ,  before  it  can  operate  as  a  revocation.    The  mere 


62  REVOCATION  OF  WILLS.  [CH.  X. 

circumstance  of  making  a  will  is  an  equivocal  act,  and  may  not 
be  done  animo  rtvocandi — i.  e.  with  the  intention  of  revoking  a 
former  one.  Roper  on  Rev.,  citing  various  authorities.  Unless 
contents  of  the  latter  will  are  known,  it  is  no  revocation — 8  Cow. 
56.;  Hard.  374;  3  Mad.  203 — even  where  there  is  a  difference  be- 
tween the  two,  if  that  difference  be  unknown.  Rob.  on  wills, 
265. 

§  4.  The  second  will  must  expressly  revoke  the  former,  or  be 
clearly  incompatible  with  the  former — quoad  the  subject  matter 
of  such  devise — for  no  subsequent  devise  will  revoke  a  former 
one,  unless  it  apply  to  the  same  subject  matter.  Cowp.  87;  7 
Bro.  P.  C.  44;  2  Ball.  268;  Rob.  on  wills,  261;  see  also  8  Cowen, 
56.  Nor  unless  it  be  moreover  clothed  with  all  the  solemnities 
necessary  to  the  validity  of,  and  belonging  to  the  will  which  it  is 
intended  to  revoke.*  14  Mass.  408, 421;  Pick.  535, 543;  Com.R. 
451;  Littel,  S.C.  541. 

§  5.  The  intention  to  revoke  must  not  be  imperfect  or  prospec- 
tive, and  the  same  rule  of  intention  applies  to  a  subsequent  will 
which  by  implication  would  revoke  a  former  one.  2  Marsh,  74; 
2  East.  488. 

Therefore,  a  declaration  by  a  testator,  that  he  has  revoked  a 
particular  devise  in  his  will,  though  reduced  to  writing,  and  at- 
tested by  three  witnesses,  will  not  operate  as  a  revocation,  unless 
signed  by  the  testator.  3  Lomax,  67,  citing  3  Lev.  86.  (See  sec. 
7,  'post. 

§  6.  And  no  subsequent  will  will  revoke  a  former  one,  though 
incompatible  with  it,  unless  made  animo  revocandi — 2  Nott&  M'- 
Cord,  482,  and  2  Connt.  Repts.  67 — nor,  unless  it  be,  moreover, 
clothed  with  all  the  solemnities  necessary  to  constitute  the  valid- 
ity of  and  belonging  to  the  will  it  is  intended  to  revoke.!     14 


*A  will  duly  executed  and  containing  devises  of  real  estate,  but  endorsed  by 
the  testator,  with  a  declaration  in  these  words — "This  will  is  invalid,  March  9th, 
1813 — as  L  S.  has  agreed  that  my  wife  shnll  claim  no  right  of  dower,  and  bound 
himself  ac-ordinarlv" — wns  held  to  he  expressly  revoked  by  such  endoisement — 
2  Connt.  67 — otherwise,  if  indorsement  were  of  a  future  intention  to  revoke.  2 
Marsh.  74. 

tA  testator's  stating  in  his  will,  that,  "being  about  to  make  a  journey,  and 
knowing  the  uncertainly  of  life,  he  deemed  it  therefore  advisable  to  make  his  will,»» 
does  not  make  it  conditional,  so  as  to  be  revoked  by  his  return.    9  Peters,  174. 


CH.  X.]  REVOCATION  OP  WILLS.  W 

Mass.  408;  ib.  421;  1  Pick.  535,  543;  Littel's  selected  cas.  541; 
Comyn's  R.  451.     So,  of  a  will  charging  land.     3  Lomax,  63. 

In  construing  the  English  statute  of  frauds,  a  distinction  has 
been  taken  between  wills  intended  to  operate  a  revocation  only, 
and  when  they  moreover  attempt  to  dispose  of  the  devised  estate : 
that,  in  the  first  case,  a  will  signed  by  the  testator,  in  the  presence 
of  three  witnesses,  without  their  attestation  is  sufficient,  but  in  the 
second  their  subscription  is  necessary. — Roper  on  Rev.  32.  This 
distinction  was  founded  on  a  difference  between  the  5th  and 
6th  sections  of  that  statute,  the  former  requiring  the  written  attes- 
tation of  three  witnesses,  the  latter  not  requiring  such  attestation 
in  writing.    Ibid. 

In  Mississippi  this  distinction  (*nnot  exist,  inasmuch  as  our 
statute  of  frauds  requires  the  "attestation"  of  witnesses  to  a  mil, 
and  requires  a  revocatory  will  or  codicil  to  be  "  made  as  afore- 
said." 

The  English  statute  of  frauds  did  not  embrace  wills  of  personal 
estate.  Therefore,  if  A  by  a  second  will,  in  his  own  hand-writ- 
ing, or  by  a  writing  signed  or  approved  by  him,  bequeathed  his 
personal  estate  in  a  manner  inconsistent  with  the  first,  the  last 
disposition  would  defeat  the  former. — Roper  on  Rev.  31,  citing  1 
Eq.  cas.  409.  But  the  statute,  in  Mississippi,  makes  no  distinc- 
tion, in  this  respect,  except  that  a  second  will,  revoking  a  devise 
of  real  estate  requires  three  witnesses,  but  revoking  a  bequest  of 
personal  estate,  requires  only  one  witness.  5  Pick.  1 12;  9  ib.  350; 
15  ib.  358. 

§  7.  Where  the  testator,  having  executed  a  will,  causes  anoth- 
er to  be  prepared,  and  supposing  the  latter  to  be  duly  executed, 
cancels  the  first,  and  the  second  proves  invalid,  the  cancelling 
will  not  revoke  the  first.  7  Har.  &  John.  388.  But  if  intending 
to  revoke  a  former  will,  he  sends  for  it  for  that  purpose,  and  the 
devisee  prevents  him,  although  the  will  is  not  thereby  revoked, 
yet  in  such  case,  the  devisee  will  be  considered,  in  equity,  a 
trustee  for  the  heirs.  2  Marsh.  74 ;  IP.  Wms,  352— (See  sec.  5, 
artte.) 

§  8.  If  a  party  deliberately  revoke  the  first  will,  the  revocation 
will  be  good,  though  he  intend  to  make  another  will  and  fail  to 
•do  so.    7  Har.  &  John.  388.  '  But  it  would  be  otherwise  if  the 


6A  REVOCATION  OF  WILLS.  [oH.  X. 

second  will  were  void  for  matter  dehers — 1  Pick.  45 — as  if,  the 
subsequent  will  be  perfect  in  form,  but  inoperative  on  account  of 
the  incapacity  of  the  devisee  to  take  under  it,  it  may  yet  operate 
a  revocation  of  a  former  will  inconsistent  with  it.  Ibid.  535,  543; 
1  Roll.  abr.  614;  10  Mod.  233;  Rob.  on  wills,  280. 

§  9.  If  there  be  ever  so  many  parts  or  duplicates  of  the  same 
will,  cancellation  of  one  will  cancel  all.  Roper  on  Rev.  32;  7 
Vern.762;  lP.Wms.346;  Cowp.49;  7  Har.&  John.388;  2Hag. 
Eccl.  rep.  266;  3  ib.  191. 

The  execution  of  a  third  will,  is  a  revocation  of  two  former  ones, 
although  the  last  be  lost  or  mislaid,  in  which  event  the  contents 
may  be  proved  by  parol.  1  Bay's  rep.  464.  But  the  statute  ap- 
plies to  finished  instruments,  and  does  not  exclude  proof,  that  a 
paper  writing  oiFered  for  probate  never  was,  in  fact,  the  will  of 
decedent.     4  Dev.  228. 

§  10.  The  statute  has  not  been  construed  so  strictly  as  to  exclude 
all  evidence  touching  the  quo  animo  the  act  was  done,  which  is 
a  conclusion  to  be  drawn  by  the  court  and  jury  from  all  the  cir- 
cumstances. 2  Yeates,  170;  S.  C.  2  Ball.  266;  3  Curt.  (Pre.  1844) 
636. 

The  mere  act  of  cancelling,  unless  done  animo  revocandi,  is 
nothing.    Littel's  S.  C.  504;  4  Kent,  (5th  ed.)  531,  532. 

The  cancellation  or  cutting  off  a  portion  of  the  devises  in  a  will, 
leaving  the  testator's  signature  at  the  conclusion,  or  in  the  body 
when  no  other  signing  had  been  intended,  with  the  declaration 
that  the  intention  was  to  annul  only  what  was  so  cancelled,  the 
residue  is  not  affected,  but  remains  a  valid  will — 1  B.  Monroe,  57; 
7  John.  374 — otherwise  if  testator  intended  to  revoke  the  will.  Ih. 
3  B.  &  A.  489.  The  word  "obsolete,"  written  by  the  testator  on 
the  margin  of  his  will,  but  not  signed  by  him  or  any  person  for 
him  in  the  mode  prescribed  by  the  act,  does  not  operate  as  a  re- 
vocation of  the  will.    2  Watts  &  Serg.  415. 

An  instrument  need  not  be  totally  destroyed  or  torn  to  pieces. 
2Nott&M'Cord,272;  13Ves.290;  2B1.R.  1043. 

§  11.  If  the  testator  cancel,  deface,  or  destroy  a  will  unadvis- 
edly, or  it  be  done  by  some  other  person,  without  his  consent,  or 
by  some  casualty,  or  when  he  doth  willingly  pull  away  the  seals, 
and  then  doth  afterwards  seal  it  again;  or  where  the  whole  testa- 


,CH.  X.]  REVOCATION  OF  WILLS.  65 

ment  is  not  cancelled  or  defaced,  but  only  some  part  or  the  chief 
part  thereof,  (as  the  naming  of  the  executor  or  the  like,)  for  it  is 
still  good  as  to  residue — or  where  there  be  several  papers  or  wri- 
tings, one,  ten  or  each  of  them  containing  the  whole  will — ^un- 
less it  can  be  proved  that  the  testator  intended  to  avoid  it;— or 
where  the  testament  was  lost  in  the  life-time  of  the  testator  or  af- 
terwards, the  will  is  not  thereby  avoided ;  for  in  this  case,  so 
much  as  can  be  proved  is  still  in  force.  Shep.  Touch.  411;  1 
Wms.  on  Ex'rs.  73,74. 

§  12.  Cancellation  is,  therefore,  only  prima  facie  evidence  of 
revocation;  but  if  made  with  the  intention  to  execute  a  new  will, 
the  cancellation  is  conditional,  and  unless  a  new  will  be  after- 
terwards  executed,  is  of  no  effect.  2  N,  Car.  R.  311.  (But  see  2 
Nott  &  M'Cord,  272;  4  Monroe,  367.) 

Where  the  revocation  is  a  relative  dependent  act,  done  with 
reference  to  another  will  which  the  testator  thinks  he  has  legally 
executed,  it  may  be  a  revocation  or  not  according  to  the  testator's 
inte;ition.    7  Har.  &  John.  388;  2  Dess.  528.* 

§  13.  So,  where  the  revocation  of  a  prior  will  is  founded  on  a 
mistake,  the  revocation  will  be  void.   3  Ves.  321;  2  Per.  &  D.  278. 

Or  where  it  proceeds  on  a  false  impression,  originating  in  de- 
ceit practised  on  the  testator — 4  Vesey,  802 — Otherwise  if  the 
testator  proceed  on  a  mere  doubt.  3  Ves.  327 ;  3  Atk.  562 ;  1 
Ves.  32. 

Where  a  testator  by  his  will  devised  all  his  land  in  trust  to 
trustees,  to  sell,  and  out  of  the  proceeds  to  pay  annuity  legacies, 
&c.,  and  afterwards  obliterates,  interlines,  and  alters  all  the  be- 
quests without  republication  of  the  will,  it  was  htld  that  the  de- 
vise to  sell  was  not  thereby  revoked.  Cowper,  812 — (See  next 
section,  and  sec.  16,  2?os^)  > 

§  14.  But  the  cancellation  need  not  be  actual,  if  intended  as 
such.    2B1.R.1043. 
•  »rlThe  most  trifling  act,  if  coupled  with  the  intention  to  revoke. 


♦Where  a  blind  man  orders  his  will  to  be  destroyed,  and  believes  it  done  ac- 
cordingly, but  it  is  not,  and  no  act  towards  its  destruction  is  proved,  it  is  no  revo» 
cation.    3  Leigh,  32. 

A  court  of  Probata  cannot  declare  it  such,  but  whether  a  court  of  Equity  would, 
Qnpry?     3  Leigh,  32. 

9 


'66  REVOCATION  OF  WILLS.  f  CH.  X. 

is  sufficient.  2  Nott  &  M'Cord,  272;  4  Monroe,  461.  If  not  coup- 
led with  such  intention,  throwing  ink  instead  of  sand  on  it,  so  as 
to  deface  it,  will  not  operate  a  revocation.  Cowp.  52;  2  Dall.  266; 
7  John.  394;  4  Stu.  R.  297;  7  Har.  &  John.  388. 

The  degree  of  burning,  cancelling,  or  obliterating,  required  by 
the  statute,  must  depend  on  the  circumstances  of  each  particular 
case.  4  Monroe,  361.  If  the  testator  without  a  republication  of 
his  will,  make  alterations  and  corrections  with  the  intent,  not  to 
destroy,  but  to  enlarge  and  extend  a  devise  already  made,  it  is  not 
a  revocation.  7  John.  394;  2  Bro.  &  Bing.  652;  5  Moore,  484,  S.  C. 
So,  striking  out  the  name  of  one  of  three  devisees,  or  trustees. — 
3  Bos.  &  Pull.  16;  4  East.  419;  1  Smith,  96. 

If  a  jury  find  that  a  will  has  been  interlined  and  crossed  in  pla- 
ces, and  the  seal  torn  off,  animo  revocandi,  it  will  be  a  sufficient 
act  of  revocation.  4  Monroe,  361 .  And  it  need  not  be  done  in  the 
presence  of  the  testator,  if  done  by  his  order.  2  Nott  &  M'Cord, 
272.  Though  a  seal  be  not  necessary  to  a  will,  yet  if  it  be  torn 
off  by  the  testator,  animo  revocandi,  it  will  be  a  revocation  of  the 
will — 4  Mass.  460 — otherwise,  if  not  done  with  such  intent.  1 
Ab.  eq.  409;  1  P.  Wms.  344,  n.  1. 

§  15.  The  act  of  cancelling,  destroying,  and  obliterating,  used 
in  the  statute,  are  such  as  would,  at  common  law,  have  destroyed 
a  will ;  and  the  act  in  each  case  must  be  accompanied  by  an  intent 
of  the  testator  to  revoke  the  will,  and  it  must  be  proved  as  other 
matters  of  fact.  4  S.  &  R.  299.  And  a  knowledge  by  the  testator, 
that  a  third  person  by  his  direction,  has  done  it,  is  sufficient  to 
show  such  intent — if  he  afterwards  refrain  from  any  attempt  to 
supply  the  loss.    2  Nott  &  M'Cord.  272— (See  sec.  15,  post.) 

§  16.  When  a  will  is  found  among  the  papers  of  the  deceased 
immediately  after  his  death,  in  a  mutilated  condition,  the  law 
will  presume  it  to  have  been  done  by  the  testator  in  his  life-time, 
animo  revocandi.  3  Iredell,  303.  So,  where  the  will  was  equally 
accessible  to  a  stranger  and  the  deceased,  in  the  life-time  of  the 
testator.     Ibid, 

But,  if  not  found  mutilated  till  two  days  after  the  testator's 
death,  and  in  the  mean  time  it  has  been  in  the  custody  of  the  heir, 
a  different  presumption  arises — lb. — Or  if  the  heir  first  refused 
to  produce  it,  not  mentioning  the  mutilation.    Ibid. 


CH.  X.]  REVOCATION  OF  WILLS.  67 

If  a  testator  makes  his  will  five  days  before  his  death,  and  af- 
ter his  death  it  cannot  be  found,  it  will  be  presumed  that  he  can- 
celled it,  in  the  absence  of  proof  to  the  contrary.  10  Yerg.  84. 
So,  if  a  will  be  duly  executed  and  in  the  possession  of  the  testa- 
tor five  years  afterwards,  and  within  a  few  months  prior  to  his 
decease  could  not  be  found,  it  will  be  presumed  that  he  cancel- 
led it.    6  Wend.  173. 

But  where  a  man  retains  a  will  with  full  opportunity  to  revoke 
it,  and  does  not  revoke  it,  the  presumption  is  strong  that  he 
wishes  it  to  stand;  though,  at  first,  it  may  have  been  unfairly  ob- 
tained from  him.  It  is  otherwise,  where  soon  after  its  execution, 
he  dies — or,  where  after  its  execution,  his  intellects  are  too  weak 
to  judge  of  the  propriety  of  the  revocation  of  it.  The  jury  must 
judge,  in  such  case,  whether  the  testator's  state  of  mind  was  such 
as  to  enable  him  to  judge  of  the  propriety  of  cancelling  a  will, 
obtained  by  fraud,  or  under  influence.     8  S.  &  R.  573. 

The  failure  of  one,  who  is  infdi-med  of  the  loss  or  destruction 
of  his  will,  to  publish  another,  aifords  a  presumption  of  an  inten- 
tion to  revoke  the  last.  But  this  presumption  may  be  rebutted  by 
evidence;  as,  the  declaration  of  the  testator  himself  5  B.  Monroe, 
72.  But  if  part  of  the  contents  of  the  last  will  be  proved,  that 
part  may  be  established.    Ibid. 

§  17.  A  will  can  be  cancelled  only  by  the  testator  himself,  or 
by  some  person  in  his  presence,  acting  by  his  express  directions.* 
So  that  if  a  stranger  tears  a  will  to  pieces,  it  will  not  thereby  be 
revoked.  2  Vern.  441.  And  no  directions  given  by  the  testator 
to  a  third  person  to  destroy  his  will,  will  amount  to  a  revocation, 
if  the  will  be  not  destroyed.    3  Leigh,  32 — (See  sec.  14,  anie.) 

No  intent,  unaccompanied  by  any  act,  will  destroy  a  will — 2 
Marsh.  190 — And  the  act  must  be  completed,  for  if  arrested  before 
its  execution,  it  will  not  be  a  revocation.  3  Barn.  &  Aid.  489.t 


*In  Mississippi,  it  must  be  done  in  the  testator's  presence,  to  be  in  conformity 
with  the  act. 

t  Where  A,  having  executed  a  will  in  due  form,  in  presence  of  witnesses,  buys 
and  sells  land — and  several  years  afterwards  shows  to  a  third  person,  a  paper, 
marked  "memorandum  of  my  last  will,"  by  which  he  makes  a  different  disposition 
of  his  estate,  and  appoints  ezecutots — and  requests  such  person  to  put  it  in  form, 
but  is  advised  to  show  it  to  counsel — and  consents — but  survives  five  months,  be- 
ing Mne  and  capable,  and  dies  without  altering  this  paper,  with  former  will  in 


68  REVOCATION  OF  WILLS.  [CH.  X. 

§  18.  Changing  an  executor  in  presence  of  one  witness,  is  no 
revocation  of  a  will  of  real  estate — for  the  power  of  an  executor 
extends  only  to  the  personalty,  4  Monroe,  154.  And  if  A  give  a 
legacy  to  such  charity  hospital  as  his  executor  shall  select,  and  af- 
terwards strike  out  the  name  of  his  executor,  this  is  no  revocation 
of  the  legacy,  for  the  court  will  appoint.  T.  1778;  Bro.  Ch.  C.  12. 
(See  sec.  14,  ajde.)  Antedating  a  will  is  no  revocation  of  it,  and 
it  will  be  considered  as  executed  in  conformity  to  the  statute/ 
though  one  witness  only  can  prove  the  alteration  of  the  original, 
and  the  other  witness'  was  not  present  at  the  alteration.  Littel's 
S.C.501. 

§  19.  A  codicil,  being  considered  a  part,  and  continuation  of  a 
will,  is  never  presumed  to  revoke  it.  It  will  not,  therefore,  have 
that  effect,  unless  the  testator  has  considered  it  a  distinct  instru- 
ment, by  expressly  revoking  the  will,  or  by  making  a  disposition 
inconsistent  with  it ;  so  that  if  a  person  die  leaving  a  will  and 
several  codicils,  they  will  constitute  but  one  instrument,  and  re- 
ceive a  like  construction.  1  Ves.  178,  186;  2  Atk.  86— cited  in 
Roper  on  Rev.  30. 

Hence,  if  a  person,  by  a  codicil,  annul  part  of  his  will,  and  af- 
terwards add  another  codicil,  referring  to  the  will,  for  a  particular 
purpose,  an4  then  confirm  the  will  in  other  respects,  such  second 
codicil  will  not  revive  the  part  annuled  by  the  first — ^because,  the 
first  codicil  is  part  of  the  will,  and  must  be  considered  such,  and 
not  a  distinct  and  inconsistent  instrument.   4  Ves.  Jr.  610. 

But  a  codicil  which  operates  a  republication  of  the  will  to 
which  it  relates,  is,  of  course,  revocatory  of  any  intermediate  will. 
1  Add.  30;  2  Bin.  406;  8  Cowen,  256;  3  Bligh.  N.S.  26— cited  in 
Perk.  Jarm.  on  wills,  159;  7  Dumf.  &  East.  138;  4  Ves.  610;  1 
Ves.  488;  12  Moore,  2. 

§  20.  A  codicil  then  is  only  a  revocation  of  a  will,  in  the  pre- 
cise degree,  in  which  it  is  inconsistent  with  it — 8  Cowen  56 — or 
where  it  expressly  revokes  the  provisions  of  a  former  wiU.  1  Perk. 
Jarm.  on  wills,  156.*    If,  however,  the  testator  shows  by  the  most 


possession  uncancelled — it  was  held,  by  law  of  Penn'a.,  the  paper,  proved  by  two 
witnesses  to  be  in  the  testator's  hand-writing,  revokes  the  former  will  so  far  as 
inconsistent  therewith.     1  S.  &  R.  256. 

*A8  to  the  effect  of  a  will  and  several  codicils,  see  8  Bing.  475;  1  You.  &  J. 


OH.  X.]  REVOCATION  OF  WILLS.  69 

loose  and  untechnical  language  in  a  codicil,  that  any  devisee  or 
legatee,  shall  be  excluded  from  all  benefit  under  his  will,  such  in- 
tention, of  course,  must  prevail — and  particular  expressions,  ad- 
mitting of  a  more  restricted  construction,  will  not  be  so  constru- 
ed, if,  upon  the  whole  instrument,  it  can  be  collected,  that  the 
testator  meant  to  use  them  in  the  less  restricted  sense.  lb.  165. 

§  21.  If  the  act,  regulating  probate  of  wills,  require  two  wit- 
nesses, yet,  where  it  is  attempted  to  prove,  that  a  man,  having 
two  wills  in  his  hand,  and  intending  to  destroy  the  last,  by  mis- 
take, destroyed  the  first,  it  is  not  necessary  that  the  same  proof 
should  be  made  of  an  intention  to  destroy  the  existing  will,  as 
would  be  necessary  to  prove  the  validity  of  an  original  will.  4 
S.  &  R.  297— (But  see  sec.  6,  ante.) 

§  22.  Besides  the  mode  of  revocation  provided  by  statute,  there 
are  circumstances,  which,  by  legal  construction,  imply  a  revoca- 
tion of  a  will ;  as,  certain  alterations  in  the  situation  of  the  testa- 
tor, or  of  the  estate  devised.  4  Kent's  Com.  521,  527;  Rob.  on 
wills,  396;  3  Lomax,  74. 

Neither  the  negative  terms  of  the  English  statute,  declaring  that 
no  devise  in  writing  of  any  lands,  &c.,  shall  be  revocable,  other- ' 
wise  than  in  the  particular  modes  there  pointed  out,  nor  the  su- 
peradded affirmative  declaration  that  all  devises  and  bequests  of 
land  shall  remain  in  force  until  revoked  in  some  of  these  modes, 
have  been  considered,  in  England,  as  preventing  revocation  of 
wills,  by  implication,  under  certain  circumstances.  3  Lomax,  74; 
2  Atk.  272.  Sublato  fundo,  toltitur  id,  quod  fundi  potest — and 
the  rule  is  the  same,  as  to  revocation  of  a  sum  of  money,  charged 
on  land.  Ih.  Shep.  T.  410,  n.  [2] — And,  of  a  power  to  trustees 
to  sell.  1  Russ.  &  Myl.  677;  Amb.  224;  1  Bro.  ch.  c.  221. 

§  23.  If  a  man  conveys  away  the  estate  devised,  though  he  take 
it  back  by  the  same  conveyance  or  otherwise,  it  is  a  revocation 
of  a  precedent  will,  both  at  law  and  in  equity — although  he  did 
not  intend  to  revoke  it.  7  John.  Ch.  R.  258;  2  Atk.  202;  2  Bl. 
Comm.;  Shep.  T.  410. 

So,  a  conveyance,  inoperative  by  reason  of  not  being  complet- 
ed, or  of  the  incapacity  of  the  grantee,  may  amount  to  a  revoca- 

470;  1  Kee,817;  2  My.  &c.  806;  7  Sim.  446— cited  in  Perk-Jarm.  on  wills,  169. 


70  REVOCATION  OF  WILLS.  [CH.  X. 

tion,  if  it  shows  the  intention  of  the  testator  to  revoke  his  will, 
7  John.  Ch.  rep.  258;  E.  1714;  10  Mod.  233;  1  Bro.  Pr.  Ch.  450; 
5  Pick.  112;  9  ib.  530;  15  ib.  388. 

In  the  case  of  Beard  vs.  Beard,  lord  Hardwicke  decided,  that, 
where  a  man  made  a  will  devising  all  his  property  away  from 
his  wife  to  his  brother,  and  afterwards,  by  deed  poll,  granted  to 
his  wife  all  he  then  had  or  might  have  thereafter — although  the 
deed  poll  was  void  as  a  grant,  yet  it  was  sufficient  to  operate  a 
revocation  of  the  will,  as  to  his  personal  estate.     3  Atk.  72. 

§  24.  This  rule  is  not  confined  to  cases  of  an  actual  alteration 
of  dispositions  to  third  persons,  but  has  been  extended  to  cases  of 
an  alteration  in  the  legal  estate,  though  it  leaves  in  effect,  the  tes- 
tator, as  to  his  beneficial  interest  in  the  thing,  in  the  same  plight 
in  which  he  was  before  it  took  place.  Pow.  on  dev.  567.  And 
the  sale  of  land,  devised  in  a  will,  is  a  revocation  of  the  devise, 
even  where  the  grantee  is  the  devisee,  and  though  the  deed  be 
cancelled  in  the  life-time  of  the  testator ;  because,  the  will  hav- 
ing been  revoked  by  the  deed,  will  not,  without  republication* 
operate  as  to  the  land.     9  Dana,  25. 

Any  alteration  in  the  testator's  estate,  which  changes  the  na- 
ture and  efiect  of  his  seizin,  after  the  making  of  his  will,  is  a  re- 
vocation. 5  Pick.  112.  And  parol  evidence  is  admissible  to  show 
the  situation  of  the  testator's  property.  15  ib.  388.  (See  sec.  27, 
post) 

But  if  the  devise  or  deed  be  obtained  by  fraud,  it  will  not  op- 
erate a  revocation.    T.  1790;  3  Bro.  Ch.  C.  156. 

§  25.  But  a  mere  agreement  to  sell,  will  not,  if  unexecuted,  op- 
erate a  revocation  of  a  devise  of  land.  Cox,  (N.  J.)  R.  212;  2  Mur- 
phy, 317.  But  if  a  sale  be  rescinded  after  execution,  it  is  never- 
theless a  revocation.  5  Pick.  112.  And  if  a  contract  to  sell  be- 
come once  obligatory  on  the  testator,  it  is  a  revocation,  though  re- 
scinded in  his  life-time.  '  Dick.  653;  6  Sim.  40;  7  Ves.  558;  9  ib. 
170. 

§  26.  A  feoffment,  though,  to  the  same  uses  as  those  contained 
in  the  will,  is  a  revocation  of  it.  T.  1743;  2  Atk.  598;  4  Burrows, 
1960;  3  Atk.  803.  As,  where  a  woman,  by  settlement  before 
marriage,  conveyed  her  estate  to  trustees,  to  such  uses  as  she, 
covert  or  sole,  by  deed  or  will,  should  appoint,  and  devised  her 


CH.  X.]  REVOCATION  OF  WILLS.  7l 

estate  during  coverture ;  and  then,  after  her  husband's  death  took 
a  conveyance  of  the  estate,  from  the  trustees,  to  her  own  use,  it 
was  held  to  be  a  revocation  of  the-will.  3  Bro.  Ch.  C.  319; — 
(Dougl.  722,  seems  contra — but  in  this  case  there  was  no  change 
of  the  estate,  but  only  of  the  trustees.)  See  sec.  22,  ante.  If  a 
person,  having  devised  an  estate  per  autre  vie,  afterwards  pur- 
chase the  inheritance,  it  is  a  revocation.    2  Atk.  430. 

§  27.  A  foreclosure  of  a  mortgage  devised,  after  the  date  of  the 
devise  is  a  revocation  of  the  devise — 4  Burr.  1960;  3  Atk.  803 — 
because  it  is  a  virtual  alteration  of  the  estate.  Ibid,  and  1  Saund. 
277,  note  4;  1  Williams,  101.  ,  And  the  rule  is  the  same,  wheth- 
er it  be  done  for  a  partial  or  general  purpose,  to  which  a  court  of 
law  never  adverts,  (and  equity,  in  case  of  revocation,  never  con- 
trols the  law — except,  where  the  beneficial  interest,  being  distinct 
from  the  legal  estate,  is  devised,)  and  the  devisor  afterwards  takes 
the  legal  estate,  without  any  new  modification  or  alteration,  or 
where,  having  the  complete  legal  and  equitable  estate  at  the  date 
of  the  will,  he  divests  himself  of  the  legal,  but  retains  the  equita- 
ble interest — as  in  case  of  a  mortgage  to  secure  the  payment  of 
debts.     1  Bos.  &  P.  576;  T.  R.  399;  5  Ves.  404. 

In  the  last  cases,  though  a  revocation  at  law,  it  is  not  in  equity — 
1  Vern.  329.  (But  see  6  Ves.  221;  7  T.  R.  399*)  except  pro  tanto. 
3  John.  Ch.  C.  148 — and  the  equity  of  redemption  shall  go  to  the 
devisee — although  the  devisee  himself  be  also  the  mortgagee.  1 
Vern.  329;  3  Atk.  805;  2  P.  Wms.  33;  Prec.  in  Ch.  514,  correct- 
ed in  5  Ves.  656;  Rob.  wills,  271-2;  3  Ves.  685.  But  if,  after 
creating  the  mortgage,  the  testator  had  declared  a  trust,  to  such 
uses  as  he  might  appoint,  and  in  default  thereof,  to  himself  in  fee, 
it  would  have  been  a  revocation.  2  Ves.  Jnr.  600;  3  Lomax,  89. 
So,  a  surrender  of  a  lease  devised  and  taking  a  new  lease,  is  a  re- 
vocation.   3  P.  Wms.  163;  2  Atk.  597;  3  Lomax,  90. 

§  28.  A  devise  is  revoked  by  an  exchange,  though  the  land 
after  the  death  of  the  devisor  be  restored  to  his  heir,  under  an 


•The  general  rule  as  stated  by  lord  Hardwicke  is,  that  "though  the  convey- 
ance is  of  the  fee  simple  of  the  land  to  the  mortgagee,  yet  in  the  consideration 
of  a  court  of  Equity,  the  interest  conveyed  is  merely  a  personal  interest,  having 
no  quality  of  real  estate ;  and  that  therefore  the  testator  is  deemed  as  having  cre- 
ated only  a  chattel  interest,  which  would  be  a  revocation  only  pro  tanto.  The 
equity  of  redemption  did  not  pass  by  the  conveyance.     3  Ves.  685 ;  .3  Lomax,  89. 


72  REVOCATION  OF  WILLS.  [cH.  X. 

arremgement,  in  consequence  of  a  defect  in  the  title  of  the  other 

party  to  the  exchange.    8  Ves.  256. 

An  agreement  for  partition  by  two  co-heiresses,  is  a  revocation, 
against  the  devisee  of  one  moiety.  5  Ves.  648;  2  P.  Wms..328; 
ibid.  622.  If  it  be  nothing  but  a  partition,  it  is  not  a  revocation ; 
but  the  slightest  addition  to  that  purpose,  renders  it  a  revocation ; 
and  taking  it  to  be  a  mere  partition,  if  the  manner  of  it  destroys 
the  interest  of  the  testator  in  the  thing  given,  so  that  at  his  death, 
there  is  no  interest  in  him  to  answer  the  description,  the  devise 
cannot  operate.  7  Ves. 564;  Sib.  281.  See  also,  Toml.  164;  4 
Madd.  368,  2  Ves.  &  Bea.  382;  7  John.  Ch.  265,  266;  1  Beat 
358;  8  Sim.  171;  2  Bro.  C.  C.  108,  cited  in  1  Perk.  Jarm.  wills, 
135,  note  [3.] 

§  29.  It  has  been  observed  that  a  conveyance  by  a  testator,  of 
land  previously  devised  by  him,  and  a  reconveyance  to  himself 
in  fee,  is  a  revocation  of  the  devise.  The  reason  of  this  rule  is, 
that  the  law  presumes  that  the  testator  would  not  have  made  a 
new  conveyance  without  intending  to  revoke  his  will.  But  this 
rule  must  be  understood  with  this  limitation — that,  if  the  convey- 
ance be  for  a  particular  purpose  only,  then  it  shall  revoke  no  fur- 
ther than  to  eifect  that  purpose — as  if  the  testator  create  an  es- 
tate for  years,  or  for  life,  in  the  lands  devised,  this  shall  operate 
a  revocation  only  pro  tanto.  (See  sec.  23,  and  note;)  3  Atk.  748. 
Therefore,  where  A  devised  lands  to  B,  charged  with  an  annuity 
to  C,  and  afterwards  leased  them  to  D,  it  was  held  to  be  no  re- 
vocation of  the  annuity,  the  rent  being  sufficient  to  defray  it.  So, 
of  a  devise  of  a  term  of  years,  to  take  effect  in  the  life-time  of  the 
devisor,  to  the  devisee  of  the  fee  is  no  revocation.  2  Atk.  72.  So, 
a  mortgage,  of  land  devised,  as  security  for  money — 3  Atk.  748  ;* 
the  rule  being  the  same  in  regard  to  legal  and  equitable  interests. 
Ibid.  But  if  a  man  charges  a  portion  in  his  will,  and  in  his  life- 
time gives  it  to  the  donee,  it  is  a  revocation.  2  Atk.  273.  So,  if 
he  charges  a  debt  on  his  land  by  will,  and  pays  it  in  his  life- 
time.   Ibid. 


*The  devisee  of  a  mortgaged  estate  being  entitled  to  have  the  incumbrance  dis- 
charged out  of  the  personal  estate,  it  is  a  perversion  of  languai^e  to  call  a  mort- 
gage a  revocation  pro  tento.     1  Perk.  Jarm.  wills,  136. 


CH.  X.]  REVOCATION  OF  WILLS.  ^Z 

§  30.  A  conveyance  may  therefore  operate  a  revocation  only 
pro  tanto.  As,  if  part  only  of  the  real  estate  devised,  be  sold,  it 
is  only  a  revocation  of  the  devise,  as  to  that  part.  9  Pick.  350; 
11  Ohio  R.  287. 

So  if  A  devise  land  in  trust,  the  rents  to  go  to  his  daughter,  till 
death  or  marriage,  and  if  she  marry  with  his  consent,  then  to  her 
and  her  heirs — and  she  afterwards  marry  with  his  consent,  and 
he  settled  a  part  of  the  land  on  her  and  her  husband  and  died, 
this  was  a  revocation,  only,  pro  tarda.    M.  1716;  2  Vern.  720. 

Where  a  testator  devised  his  real  estate  to  his  children,  in  un- 
divided shares,  and  afterwards  on  the  marriage  of  one  of  them, 
conveys  to  that  child  an  aliquot  share  equal  to  that  devised — this 
is  a  revocation  only  of  all  the  shares  pro  tanto,  letting  in  the  ad- 
vanced child  to  participate  equally  with  the  others,  in  the  remain- 
ing shares.    2  P.  Wms.  334 — cited  in  Perk.  Jarm.  wills,  146. 

§  31.  The  doctrine  of  implied  revocation,  arising  out  of  the  al- 
teration of  the  estate  devised,  depends  on  these  reasons — 
1st.  The  favor  which  the  law  shows  to  the  heir. 
2d.  On  the  principle  that  the  devisor  must  be  seized  at  his  death 

of  the  lands  devised,  in  like  manner  as  at  the  date  of  his  will. 
3d.  Because  any  alteration  of  the  estate  devised  is  held  to  be  an 

alteration  of  the  intention  of  the  devisor.    3  Lomax,  80 — citing 

Jarm.  Pow.  on  dev. 

§  32.  Another  circumstance  on  which  implied  revocation  is 
founded,  is  a  subsequent  marriage  followed  by  the  birth  of  a  child. 
4John.  Ch.C.  506,  citing  various  authorities.  But  marriage  with 
the  legatee  is  no  revocation  of  the  legacy.  4  Ves.  &  Be.^  465;  2 
East.  530;  1  ab.  Eq.  413;  2  Atk.  424. 

Where  a  person  made  a  will  in  the  life-time  of  his  first  wife — 
who  died  without  issue,  and  he  married  a  second  wife  by  whom 
he  had  issue — it  was  held,  that  the  second  marriage  and  birth  of 
a  child  was  a  revocation  of  the  will.  4  Burrows,  2182;  Doug.  35; 
Ambl.  721. 

And  marriage  and  the  birth  of  a  posthumous  child  have  the 
like  effect.    5T.R.49. 

§  33.  Whether,  if  a  testator  has  more  children  by  his  first  mair 
riage  bom  after  the  date  of  his  will — and  becoming  a  widower 
10 


74  REVOCATION  OF  WILLS.  [CH.  X» 

marries  again,  and  has  no  child  by  his  second  wife,  the  will  is 
revoked — is  an  undecided  question  in  England.  4  Vesey,  840. — 
It  has  however  been  decided,  in  Maryland,  that  the  birth  of  a 
child  after  date  of  the  v/ill  does  not  operate  a  revocation  of  the 
will,  4  Har.  &  John.  142.*  And  in  such  case,  as  a  second  mar- 
riage, without  issue,  would  not  revoke  the  will,  it  seems  that  this 
decision  settles  here,  the  question  (raised  in  England,)  against  re- 
vocation. See  4  John.  C.  C.  506;  2  East.  630;  4  M.  &  S.  10;  1 
Phill.  R.  447;  2  Ed.  R.  263;  5  T.  R.  51,  in  note;  4  Kent,  523. 

§  34.  Marriage  and  the  birth  of  a  child  only  constitute  a  prt- 
sumptive  revocation,  which  presumption  may  be  rebutted  by  pa- 
rol evidence.  4  Kent,  532;  4  John.  Ch.  R.  506;  Doug.  30;  1 
Wash.  140;  3  Call.  289.  A  subsequent  codicil  will  also  rebut 
such  presumption.    2  Add.  455. 

§  35.  If  the  devise  does  not  properly  pass  the  wholt  estate, 
marriage  and  birth  of  issue  will  not  operate  a  revocation  of  it. — 
Doug.  31-40.  Therefore,  where  a  man  made  a  disposition  by  will 
in  favor  of  his  children  by  a  former  marriage,  and  afterwards 
married,  and  had  other  children  by  a  second  marriage — but  there 
was  a  marriage  settlement  by  which  the  latter  were  provided  for — 
it  was  held,  that,  for  this  reason,  the  will  was  not  revoked.  7  Ves. 
348;  lPhill.R.447;  3Call.337;  4  Kent's  Com.  523.  And  where 
the  revocation  would  not  benefit  the  issue  of  the  subsequent  mar- 
riage— as,  if  the  devise  be  of  real  estate  in  England,  which  by 
the  law  of  primogeniture  would  descend  to  the  eldest  son  by  a 
first  marriage.  1  Ves.  &  Be.  390.  And  in  the  case  of  Yerby  vs. 
Yerby,  Judge  Roane  decided  that  there  w^ould  be  no  revocation, 
unless  the  devise  was  to  others  than  the  testator's  children.  3 
Call,  289.  See  2  East.  R.  530— (and  2  Ch.  cas.  16,  overruled  in 
3  Call,  289.)  t  . 

§  36.  It  will  be  evident  from  the  preceding  sections  that  the 
doctrine  therein  laid  down  rests  on  the  presumption  which  arises 


.   *See  what  is  said  on  this  subject,  post — aec.  39. 

fin  Penn'a.  under  the  act  of  1789,  marriage,  or  birth  of  issue,  operates  a 
revocation  of  a  precedent  will,  so  far  only  as  regards  the  widow  or  posthumous 
child  or  children,  although  the  subsequent  issue  is  the  testator's  only  child,  as  to 
provisions  not  interfering  with  those  interests — as  appointment  of  executors- 
power  to  sell  for  payment  of  debt,  &c. — the  will  still  remains  valid.   3  Bin.  498. 


CH.  X.]  REVOCATION  OF  WILLS.  75 

from  the  change  of  the  testator's  situation,  and  the  total  destitu- 
tion which  would  await  the  issue  of  his  subsequent  marriage, 
coupled  with  the  testator's  duty  to  provide  for  them — that  it  was 
the  intention  of  the  testator  to  revoke  a  previous  will,  made  be- 
fore these  circumstances  existed.  2  East.  530;  1  Ves.  &  Be.  465; 
1  Wash.  177. 

§  37.  Marriage  alone  is  a  revocation  of  a  woman's  will,  with- 
out birth  of  issuei — 5  T.R.  58-59: — Because,  1st.  It  was  her  own 
act: — 2d.  If  it  were  not,  the  husband  might  by  undue  influence 
oblige  her  either  to  revoke  or  continue  it  as  best  suited  his  inter- 
est.   Swinb.  270;  Roper  on  Rev.  19. 

And  here  may  be  observed  a  distinction  between  the  effect  of 
a  disability  voluntarily  assumed,  and  one  imposed  by  act  of  God. 
For  if  a  person,  after  making  a  will,  became  insane,  his  will  is  not 
thereby  revoked.  Swinb.  68;  Roper  on  Rev.  20;  Wms.  on  ex'rs. 
78. 

A  better  reason  than  either  of  those  assigned  above,  why  the 
marriage  of  a  woman  is  a  revocation  of  her  will,  is  this : — that  if 
she  dies  before  her  husband,  the  will  can  have  no  effect,  the  ma- 
king of  it  being  only  inceptive,  and  it  taking  effect  only  by  the 
death  of  the  testatrix.  And  though  it  has  been  the  received  opin- 
ion, that  if  she  survived  her  husband,  the  will  would  remain  as 
valid  as  if  she  had  not  married — See  3  Lomax,  and  authorities 
there  cited — Yet  their  opinion  is  counterbalanced  by  the  weight 
of  authority.  Ibid.    (See  also  the  authorities  above  quoted.) 

§  38.  In  analogy  to  the  reasoning  in  cases  where  marriage  and 
the  birth  of  a  child,  are  allowed  to  revoke  wills,  it  seems  that  if 
a  person  intend  to  defeat  a  prior  disposition  in  consequence  of  a 
mistake,  such  as  a  belief  in  the  devisee's  death,  when  he  is  in  fact 
living,  and  the  like — the  prior  instrument  will  not  be  revoked  by 
the  latter — the  sole  motive  for  the  testator's  intended  alteration 
of  his  will  being  a  supposed  event,  which  has  not  happened.  3 
Ves.  321,  cited  in  Roper  on  Rev.  29;  2  Yeates,  179. 

But  the  rule  is  otherwise,  where  the  mistake  is  only  as  to  the 
legal  effect  of  the  testator's  acts.    3  Atk.  551.  (See  sec.  13,  ante.) 

§  39.  By  statute,  (in  Mississippi,)  it  is  provided  that  where  a. 
testator  made  his  will,  when  he  had  no  child  living,  and  no  prO' 
vision  made  for  such  child  as  he  might  have,  and  no  mention 


I 


76  REVOCATION  OF  WILLS.  [CH.  X. 

made  thereof — if  at  the  time  of  his  death  he  leave  a  child  bom, 
or  his  wife  tncdriit  of  a  child  which  shall  be  bom — such  will 
shall  have  no  effect,  during  the  life  of  such  after-bom  child,  un- 
less the  child  die  without  having  been  married,  and  before  he  or 
she  has  attained  the  age  of  21  years ;  and  the  estate  both  real  and 
personal  shall  descend  to  such  child,  subject  nevertheless  to  the 
bequests  made  in  said  will  if  such  child  die  before  marriage  or 
arriving  at  the  age  of  21  years.    (How.  &  H.  ch.  36,  p.  386.) 

It  is  also  provided  that  if  a  testator,  having  children  bom  at  the 
time  of  making  his  will,  shall  at  his  death  leave  a  child  or  child- 
ren born  after  the  making  of  such  will,  such  child  or  children, 
(if  unprovided  for  by  settlement,)  and  if  neither  provided  for  nor 
disinherited  by  the  will,  but  only  pretermitted — shall  have  the 
same  portion  of  the  father's  estate  that  he  or  they  would  have 
been  entitled  to,  had  such  father  died  intestate.  (H.  &  H.  ch. 
36,  p.  386.) 

The  foregoing  statutes  have  created  two  more  instances  in 
which  circumstances  operate  an  implied  partial  revocation  of  a 
testator's  will,  founded  on  the  presumption  that  the  father  did  not 
intend  to  leave  after-born  children  unprovided  for. 

Under  a  similar  act  in  Kentucky,  it  has  been  decided,  that  where 
T.  devised  his  estate  to  his  wife  and  three  children,  if  his  wife 
should  not  be  enceinte  at  his  death,  but  if  she  should,  then  to  her 
and  her  four  children — and  he  lived  till  his  wife  had  her  fourth 
child,  and  then  died  leaving  her  enceinte  with  the  fifth,  it  was 
held,  that,  that  the  devise  was  not  confined  to  the  four,  but  that 
all  the  five  children  took  an  equal  share.    6  Mon.  175. 

§  40.  In  case  of  revocation  by  a  conveyance  of  the  estate,  de- 
vised by  the  testator,  after  the  execution  of  a  will,  parol  evidence 
is  not  admissible  to  prove  that  the  testator  did  not  intend  to  re- 
voke his  will.  2  M'Cord,  Ch.  R.  278;  2  Ves.  606.  If  it  were 
the  intention  of  the  testator  that  the  will  should  continue  to  oper- 
ate on  the  land,  the  law  says  it  shall  not,  and  that  law  is  impera- 
tive.   Ibid. 

The  rule,  in  this  case,  is  different  from  that  which  allows  the 
presumption  arising  from  marriage  and  birth  of  issue,  to  be  re- 
butted by  testimony,  for  the  reason  that  a  conveyance  of  land  is  a 
solemn  act  of  the  testator  himself,  importing  that  he  meant  to  re- 


CH.  XI.]  REPUBLICATION  OF  WILLS.  77 

voke  his  will.  Bat  it  is  otherwise  where  the  presumption  arises 
only  from  a  change  in  the  testator's  situation.  Ibid.  (As  to  the 
change  of  this  doctrine  introduced  by  statute  in  Virginia,  see  3 
Lomax,  92,  citing  1  Wash.  100.)  >  t./i^i     ; 

Chancellor  Kent  has  adopted  the  English  doctrine  as  part  of 
the  settled  jurisprudence  of  this  country.  4  Kent's  Com.  530-1. 

§  41.  The  Probate  Court  may  decide  on  the  question  of  revo- 
cation by  implication,  and  if  it  has  been  revoked,  may  refuse  to 
admit  the  will  to  probate.  It  may  also,  where  admissible,  resort 
to  parol  evidence  for  the  purpose  of  repelling  or  supporting  the 
presumption  of  revocation.  1  Wash.  140;  3  Hen.  &  Munf  527; 
2Munf.  209. 


CHAPTER  XL 


RE-PUBLICATION    OF    WILLS. 


§  1.  Wills,  being  ambulatory  till  the  testator's  death,  may,  at 
any  time  prior  to  that  event,  be  revoked  or  revived,  at  his  pleas- 
ure. 

The  republication  of  a  will,  will  give  to  it  all  the  effect  of  a 
will  made  at  the  time  of  republication,  and  set  up  and  re-establish 
it,  so  as  to  make  it  pass  all  the  property  which  the  words  em- 
brace, belonging  to  the  testator  at  the  time  of  such  republication. 
1  Perk.  Jarm.  wills,  174;  Cowp.  130;  2  Binn.  414;  Cro.  Eliz.  493; 
Com.  381;  1  Ves.  437;  2M.&S.5;  lMer.R.285;  3  Pick.  213; 
14  Pick.  534. 

And  will  also  enable  a  person,  not  in  existence  at  the  time  of 
the  original  execution  of  the  will,  to  take  under  it,  provided  the 
words  of  the  will  sufiiciently  describe  him.  1  P.  Wms.  275;  5 
Ram.  wills,  266;  Perk.  Jarm.  wills,  182;  2  Ves.  626;  4  Durnf.  & 
East.  601. 


IS  REPUBLICATION  OF  WILLS.  fcH.  XI. 

§  2.  But  a  republished  will,  will  not  pass  lands  acquired  be- 
tween the  original  date  and  its  republication,  unless  they  answer 
the  description  contained  in  the  will.  Therefore,  if  the  will  con- 
vey lands  described  only  as  B,  C,  and  D,  it  will  not  pass  other 
lands,  afterwards  acquired — and  so  of  the  devisee ;  and  therefore, 
if  an  estate  be  devised  to  A,  and  his  heirs,  and  A  die  in  the  tes- 
tator's life-time,  B,  who  is  the  heir  of  A,  cannot,  by  a  republica- 
tion, take  the  devise ;  because,  the  effect  of  the  limitation  in  the 
will,  was  such,  that  B  could  only  take  by  descent  from  A — where- 
as, if  he  took  under  the  republished  will,  he  would  take  as  pur- 
chaser. Plow.  345;  Prec.  ch.  439;  Cro.  El.  422.  (See  abo  2  M. 
&  S.  5.) 

A  republished  will  merely  speaks  from  the  date  of  its  republi- 
cation, and  such  republication  cannot  bring  within  the  scope  of 
the  will,  any  subject  not  comprehended  by  it,  had  the  circum- 
stances under  which  it  was  republished  existed  at  its  date.  Perk. 
Jarm.  wills,  183,  citing  13  East.  526;  10  Barn.  &  Cress.  895. 

§  3.  At  common  law,  the  courts  leaned  much  in  favor  of  every 
republication  of  a  will,  and  when  the  intent  to  republish  could, 
by  any  means,  be  ascertained,  it  was  allowed  that  effect,  even 
though  such  intention  rested  on  pure  verbal  declarations.  Rop. 
on  revoc.  34.  And  this,  even  where  such  declaration  avowed 
only  an  intention  to  adopt,  and  look  on  a  will  once  revoked  as  the 
only  proper  will  of  the  testator.     Ibid. 

To  correct  the  evils  growing  out  of  this  rule  of  the  common 
law,  the  courts,  after  the  statute  of  frauds  adopted  a  new  rule,  re- 
quiring the  same  solemnities  to  republish,  as  the  statute  required 
to  make  a  valid  and  effectual  will  of  lands.  Rop.  on  Rev.  34;  9 
John.  312;  7  ib.  394.*  Otherwise  the  statute  of  frauds  might  be 
evaded.     1  Ves.  440;  2  Rand.  192;  2  Connt.  R.  67. 

§  4.  It  was  once  held  that  to  pass  after  acquired  lands,  the  will 
must  be  re-executed.  3  Rep.  in  Ch.  90.  But,  it  is  now  sufficient, 
to  republish  a  will,  that  there  be  a  codicil  duly  attested  and  re- 
ferring to  the  will ;  and  in  such  case,  the  will  will  take  effect  from 


*In  Miseissippi  the  same  rule  prevails — For,  as  our  statute  of  frauds,  unlike  th« 
English)  requires  certain  solemnitiets  to  the  revocation  of  a  testament  of  chattels. 
So,  the  same  solemnities  are  necessary  to  the  republication  of  all  wills,  as  to  the 
revocation  of  them.    See  9  John.  312;  7  ib.  394.  .  -.r  . 


CH.  XI.]  REPUBLICATION  OF  WILLS.  79 

the  time  of  the  execution  of  the  codicil.  10  Modem,  96;  Ram. 
wiUs,  ch.  17;  2  Ves.  98;  2  P.  Wms.  329,  334— And  this,  even 
though  only  an  equitable  title  be  obtained,  if  afterwards  it  be  clo- 
thed with  the  legal  title — and  the  latter  may  be  paid  for  out  of 
the  personal  estate — E.  1805;  10  Ves.  605,  611 — Unless  a  contra- 
ry intention  appear.  7  Ves.  98;  7  T.  R.  484;  2  Bos.  &  Pull.  500; 
2Russ.  &Myl.ll7. 

And  it  is  sufficient  if  the  codicil  clearly  refer  to  the  subject 
matter  of  the  will,  though  not  annexed  to  it.  Perk.  Jarm.  on  wills, 
174,  note  (1)— Com.  R.  381;  3  Bro.  Pre.  ch.  85.  So  a  codicil  re- 
ferring inaccurately  to  a  will,  may  republish  it.  1  Addams,  38; 
3Phillim.361. 

§  5.  No  precise  form  of  words  is  necessary,  but  any  words  de- 
noting the  continuance  of  the  testator's  mind,  except  so  far  as  al- 
terations are  made.  1  Roll.  ab.  617,  cited  in  3  Lomax  dig.  96. 
The  person  himself  might  be  at  a  distance  from  the  will  itself, 
and  might  know  the  substance,  though  he  could  not  recollect  the 
words.  Ibid.— citing  1  Ves.  437;  4  ib.  615. 

Whenever  a  codicil  ratifies  and  confirms  a  will,  it  operates  a 
republication  of  it.  Amb.93;  1  Ves.  492;  Cowp.158;  Amb.371; 
3  B.  Monroe,  393;  3  Bing.  614;  2  M.  &  Sel.  5*— overruling  Rob. 
will,  490. 

§  6.  The  circumstance  of  the  testator  having  expressly  devised 
by  such  codicil  part  of  the  estate  purchased  since  the  date  of  his 
will,  does  not  exclude  the  rest  of  such  after-acquired  estate,  from 
the  effect  of  republication,  but  the  same  will  pass  under  a  residu- 
ary devise,  from  the  date  of  the  codicil.  Perk.  Jarm.  175;  2  Bro. 
Ch.  C.  291;  1  Mer.  285.  So,  an  express  devise  for  life,  of  such 
intermediately  acquired  estate,  to  the  person  who  is  residuary  de- 
visee in  the  will,  will  not  prevent  the  reversion  from  passing  to 
the  same  residuary  devisee,  by  force  of  the  republication,  10  B. 
&  Cress.  895,  cited  in  Perk.  Jarm.  wills,  175. 

§  7.  In  relation  to  specific  devisees,  the  doctrine  must  be  re- 
ceived with  more  caution.  On  this  point  see  Perk.  Jarm.  wills, 
180— citing  2  Atk.  180;  2  Vern.  209;  2  Eden.  263. 

*S«e  also  Amb.  97—1  Ves.  486—4  Bro.  Ch.  cas.  2—1  Mer.  286—7  T.  R.  138— 
3  Ve«.  405—7  Ves,  97,  499— accordant. 


80  REPUBLICATION  OP  WILLS.  [cH.  XI. 

A  legacy  to  a  child,  adeemed  by  subsequent  advancement,  is 
not  revived  by  a  constructive  republication  of  the  will  by  codicil. 
2Freem.224;  1  Ball  &  Be.  298;  2  Russ.  &  My.  270;  3My.&C. 
376,  359;  2  Ves.  623;  4  ib.  610;  7  ib.  499;  S.  C.  12  Ves.  206— 
cited  in  Perk.  Jarm.  wills,  181. 

A  codicil,  properly  attested,  may  be  a  republication  of  a  will, 
so  as  to  give  effect  to  a  devise,  otherwise  void  on  account  of  the 
devisee  being  a  witness  to  the  original  will.   6  John.  Ch.  375. 

§  8.  In  conclusion,  it  may  be  added,  that,  "  where  a  person 
makes  a  will,  and  afterwards  revokes  it  by  making  another  will, 
but  does  not  actually  cancel  it,  the  cancellation  of  the  second  will, 
will  operate  a  republication  of  the  first.  3  Lomax,  102;  4  Burr. 
2512;  2  Dall.  289;  2  Yeates,  170.  The  second  will  never  opera- 
ted, being  only  intentional.  If  the  testator,  by  making  the  se- 
cond will,  intended  to  revoke  the  first,  yet  that  revocation  was 
itself  revocable,  and  the  testator  did  revoke  it.  2  Ves.  &  Be.  122; 
4  Burr.  512;  2  Dall.  289;  2  Yeates,  170.  And,  by  a  revocation 
of  the  second  will,  virtual  or  express,  the  former  will,  if  subsist- 
ing, is  revived.  Cowp.  92;  3  Wils.  497;  2  W.  Bl.  937;  3  Lo- 
max, 103. 

But  where  a  person  having  made  a  new  will,  cancelled  the  for- 
mer one,  the  cancellation  of  the  second  will  not  revive  the  for- 
mer, for  a  will  once  cancelled  can  only  be  revived  by  a  re-execu- 
tion— 3  Lomax,  103,  citing  3Atk.798,  and  other  decisions — even 
though  a  duplicate  of  the  first  will  remain  uncancelled.  13  Ves. 
290;  Cowp.  49;  3  Lomax,  103. 

Where  testator  has  revoked  a  will  by  an  instrument  in  his  own 
hand-writing,  subsequent  conversations  of  the  testator  with  refer- 
ence to  a  will  being  in  existence,  will  not  revoke  the  revocation. 
3  Hen.  &  Munf.  562;  3  Lomax,  103. 

§  9.  Republication  may  be  fixed  at  a  day  subsequent  to  the  time 
when  a  will  was  executed,  if  proved  to  have  been  made  with  due 
solemnities  ;*  and  although  it  may  have  been  probated  without 
reference  to  such  subsequent  republication.  1  Rand.  190. 


*In  Mississippi,  our  statute,  unlike  the  English,  requires  certain  solemnities  to 
the  revocation  of  a  will ;  so  the  same  solemnities  are  necessary  to  a  republication 
of  a  will,  as  for  its  revocation.  See  9  John.  312;  7  ib.  394.  And  a  will,  once  re- 
voked, can  only  be  republiifhed  or  revived  by  some  express  »et.    1  How.  336, 


CH.  XII.]  FOREIGN  WILLS.  81 

§  10,  Where  a  testator  altered  his  will  by  erasures  and  inter- 
lineations so  as  to  make  his  devise  extend  to  all  lands  of  which 
he  should  die  seized,  and  endorsed  a  memorandum  to  that  effect 
on  the  will,  stating  the  alterations  which  he  had  made,  but  the 
memorandum  was  attested  by  two  witnesses  only,  held  that  the 
alteration  was  inoperative,  and  that  lands  acquired  after  the  de- 
vise, descended  to  the  heirs  at  law.    7  John.  394. 

Where  a  person  made  a  will  in  1805,  devising  all  his  estate, 
and  afterwards  became  seized  of  other  land,  and  in  his  last  sick- 
ness said  he  had  disposed  of  all  his  estate  by  a  will  deposited 
with  S,  and  that  he  did  not  wish  to  alter  it,  except  to  add  anoth- 
er executor, — held,  that  this  was  no  republication  so  as  to  include 
after-acquired  land.    9  John.  312, 


CHAPTER  XII. 

FOREIGN  WILLS. 

§  L  Authenticated  copies  of  wills,  proved  according  to  the 
laws  of  any  of  the  United  States,  or  the  territories  thereof,  or  of 
any  country  out  of  the  limits  of  the  United  States,  and  touching 
or  concerning  estates  within  this  State,  may  be  offered  for  and  ad- 
mitted to  probate,  in  said  courts,  (of  probate;)  but  such  will  shall 
be  liable  to  be  contested  in  the  same  manner  as  the  original  (see 
H.  &  H.  ch.  36,  sec.  17,)  might  have  been.  H.  &  H.  ch.36,  sec. 
13,  p.  388.    As  to  granting  letters  thereon,  see  Ibid,  sec.  14.* 


*In  Kentucky,  under  the  laws  of  that  State  and  the  decisions  of  its  Courts,  a 
will  with  two  witnesses  is  sufficient  to  pass  real  estate,  and  the  copy  of  such  will, 
duly  proved  and  recorded  in  another  State,  is  good  evidence  of  the  execution  of 
the  will.    1st  Peters,  508. 

But  a  testamentary  paper,  executed  in  a  foreign  country,  even  if  so  executed  as 
to  give  it  effect  by  the  foreign  law,  cannot  be  made  the  foundation  of  a  suit  in  a 
court  of  Equity,  until  probated  here  in  the  proper  court.    12  Wheat.  169 ;  6  Cond. 

11 


82  FOREIGN   WILLS.  [cH.  XIL 

§  2.  A  testamentary  disposition  of  the  testator's  personal  prop- 
erty, must  have  been  made  according  to  the  law  of  the  testator's 
domicil,  at  the  time  of  his  death.  2  B.  Mon.  382,  138;  2  Blackf. 
53;  Story's  Conf.  465;  4  Greenl.;  1  Scammon,  373 — and  other 
decisions  cited  in  Perk.  Jarm.  wills,  2,  note  (1.) 

This  position  respects  only  the  devolution  of  property,  and  not 
the  court  of  administration — the  latter  being  always  governed  by 
lex  loci  reisita — Perk.  Jarm.  2,  note  d. — ^the  rights  of  legatees  as 
well  as  of  next  of  kin,  in  case  of  intestacy  are  governed  by  the  law 
of  the  domicil  of  the  intestate.  11  Mass.  264;  14  Martin,  99;  3 
Paige,  182;  4  John.  Ch.  460;  9  Mass.  355;  1  Mason,  381;  10  Pick. 
100;  8  ib.  476;  6  Vermt.  374. 

But  a  devise  of  real  estate  will  not  be  good  unless  made  ac- 
cording to  the  law  of  the  place  where  the  property  is  situated. — 
2  B.  Mon.  382;  9  Wheat.  565;  18  Pick.  245;  1  ib.  81,  86;  2  Mete. 
281;  1  Blackf.  372;  1  Wash.  Ct.  Ct.  R.  204.  The  same  rule  ap- 
plies to  republished  wills.     3  ib.  484. 


A  copy  of  a  foreign  copy,  which  last  has  been  proved  and  recorded  in  a  county 
court  of  Kentucky,  may  be  given  in  evidence.    2  Marsh.  554. 

A  sworn  copy  of  a  will  proved  and  recorded  in  the  proper  office  of  a  sister  State, 
is  evidence  here,  as  an  unrecorded  deed  would  be;  but  the  proof  must  show  that 
every  requisite  to  make  it  a  good  will,  according  to  our  statute,  has  been  complied 
with.    2  Marsh.  86-555;  3  Littel,  479.     As  to  authentication,  see  3  Marsh.  614. 

The  copy  of  a  will  regularly  recorded  in  Virginia,  where  the  testator  lived,  di- 
recting lands  in  Kentucky  to  be  sold,  may  be  recorded  in  the  county  where  the 
lands  lie ;  and  although  it  would  be  irregular,  the  county  court  may  grant  admin- 
istration thereon,  with  the  will  annexed,  before  the  will  is  recorded,  and  such  ad- 
ministration will  confer  competent  authority  to  dispose  of  the  estate,  till  avoided 
in  the  appellate  court.  3  Marsh.  309— (8  Ohio,  239 ;  10  Ohio,  362,  acct.)  But  it 
will  not  affect  the  ultimate  destination  of  the  property  16  Mass.  433;  1  John. 
Ch.  153. 

A  certified  copy  of  a  nuncupative  will,  purporting  to  pass  property  in  Kentuc- 
ky, proved  and  recorded  in  Mississippi,  is  not  sufficient  to  show  that  such  a  will 
has  been  made,  as  the  laws  of  Kentucky  required.  2  B.  Monroe,  382.  A  nun- 
cupative will  must  conform  to  the  laws  of  the  testator's  domicil.    lb.  383.      s 

In  Michigan,  by  revised  law,  a  person  residing  in  another  State  and  owning 
land  in  this,  may  convey  it  according  to  the  law  of  his  domicil.  Perk.  Jarm.  wills, 
1,  note. 

In  Ohio,  a  will  made  in  another  State  where  it  is  valid,  but  not  in  conformity  to 
the  laws  of  this  State,  passes  no  property  here  under  act  of  1831 — but  it  is  other- 
wise under  the  act  of  1805,  and  1840.     10  Ohio  R.  362. 

Respecting  validity  and  probate  of  wills,  made  abroad  and  succession  and  distri- 
bution of  real  property  of  foreigners — See  3  Cranch.  319;  7  ib.  1 15;  3  John.  Ch. 
210;  4  ib.  469-470;  1  Binn.  336;  9  Mass.  337;  I  Mason,  408;  4  Greenl.  134;  2 
M'Cord'sCh.  354-9;  3  Metcf.  109-1 14;  10  Pick.  77,  108;  8  Pick.  475;  8  Mass. 
506:  13  Pick.  8-23;  1 1  Mass.  256-264 ;  5  Pick.  370;  9  V^^heat.  565 ;  1  Const.  R. 
292;  5  Gill.  &  John.  483;  22  Maine,  300;  11  New-Hamp.  88;  3  Pick.  128;  5 
Cranch.  289;  1  M'Lean,  189;  8  Ohio,  239;  16  Mass.  433;  1  John.  Ch.  153. 


CH.  XII.]  FOREIGN    WILLS.  83 

§  3.  A  will  devising  land  in  one  State,  may  be  proved  there, 
though  pronounced  void  in  another  State.    4  Call.  89. 

A  will  of  a  foreign  state,  if  proved  there  so  as  only  to  be  a  will  of 
personalty  here,  shall  be  so  admitted ;  but  if  so  proved  there,  as, 
if  it  were  established  here,  it  would  be  sufficient  as  a  will  of  lands, 
it  shall  be  so  admitted  here.     3  Leigh,  816^ 

As  a  general  rule,  however,  the  law  of  the  place  where  immov- 
able property  is  situated,  will  govern  as  to  capacity  of  the  testator, 
the  extent  of  his  power  to  dispose  of  the  property,  and  the  forms 
and  solemnities  necessary  to  give  the  will  its  due  attestation  and 
effect.  Story  Conf.  of  law,  §  474,  and  notes;  4  Kent,  513;  2  ib. 
429;  6  Monroe,  527;  4  Greenl.  138;  22  Maine,  303-4;  8  Ohio, 
239. 

§  4.  A  will  made  in  another  State  must  be  interpreted  accord- 
ing to  the  law  of  that  State.    2  N.  Car.  129. 

Where  the  will  is  to  be  construed  by  foreign  law,  the  opinion 
of  an  advocate  versed  in  that  law,  will  guide  the  court ;  but  if  by 
a  rule  of  construction  common  to  both  countries,  the  court  will 
adjudge,  without  the  assistance  of  such  jurist.    3  My.  &  Cr.  559. 

§  5.  A  will  devising  lands  made  in  a  different  State  from  that 
in  which  the  lands  lie,  but  registered  in  the  latter,  relates  back  to 
the  date  of  the  will,  and  it  is  wholly  immaterial  whether  a  suit  is 
brought  before  or  after  registration.     11  Peters,  185. 

A  will  made  in  Virginia,  and  duly  proved  and  registered  there, 
declaring  the  loan  and  limitation  of  property  therein  mentioned, 
which  property  was  then  in  Virginia,  is  sufficient  against  pur- 
chasers, without  registration,  in  Tennessee,  under  act  of  1801 — 
though  the  property  may  have  been  removed  to  Tennessee  by  the 
loanee  and  possession  held  for  five  years.    8  Yerg.  4. 

In  Ohio,  a  foreign  will  takes  effect  from  testator's  death.  Its 
registration  is  only  intended  to  admit  a  copy  in  evidence.  9  Ohio, 
96;  1 1  Peters,  185.  But  until  registration,  no  title  to  lands  in 
this  State  will  vest  in  the  devisee.  6  Ohio  R.  174. 
-  A  will,  made  in  another  State,  will  not  authorize  any  person 
to  intermeddle  even  with  the  personalty  of  the  testator,  in  Ohio, 
unless  proved  in  the  latter  State  as  directed  by  its  laws.  9  W^heat. 
565. 


84  FOREIGN    WILLS.  '  [CH.  XIlw 

But  where,  a  suit  in  one  State,  brings  in  question,  incidentally j 
the  title  to  land  held  under  a  devise,  in  another  State,  the  will  is 
evidence  without  probate,  in  the  State  where  the  suit  is  pending. 
3  Mason's  Ct.  Ct.  R.  508;  6  Mon.  523. 

And  where  a  will,  made  in  another  State,  is  admitted  to  probate 
in  Ohio,  it  will  pass  lands  in  Ohio,  though  not  executed  according 
to  the  laws  of  that  State;  because  the  probate  of  a  will,  is  a  judi- 
cial act,  and  cannot  be  called  in  question,  collaterally.  8  Ohio, 
239;  10  ib.  362. 

§  6.  An  authenticated. copy  of  a  will,  and  of  the  probate  there- 
of, in  Kentucky,  showing  that  it  was  proved  there  by  three  sub- 
scribing witnesses,  but  not  stating  the  substance  of  the  proof  there, 
can  be  admitted  to  probate  in  Virginia,  only  as  a  will  of  personal- 
ty.   3  Leigh,  819. 

Query  ?  If  the  law  of  Kentucky  was  proved  to  be  the  same  as 
that  of  Virginia  on  the  subject,  would  the  admission  of  a  will  to 
full  probate  in  the  latter  State  be  a  sufficient  warrant  of  its  admis- 
sion to  full  probate  as  a  will  of  lands,  in  the  former  State,  with- 
out the  particulars  of  the  proof  there,  appearing  on  the  record  of 
the  probate.    3  Leigh,  819. 

A  copy  of  a  will  proved  in  Louisiana  according  to  the  laws  of 
that  State,  and  offered  for  probate  in  Virginia,  not  authenticated 
according  to  the  act  of  Congress,  1790,  but  according  to  the  com- 
mon law,  is  a  duly  authenticated  copy  within  the  statute  of  wills. 
3  Leigh,  816. 

§  7.  The  law  of  Maryland,  on  this  subject,  is  the  common  law 
of  England ;  and  where  a  probate  of  a  will  was  offered  in  evi- 
dence, supported  by  evidence  of  the  loss  of  the  original  will,  from 
the  office  of  the  Court  of  Probates,  it  was  held,  that  the  jury  were 
not  bound  by  the  probate  to  find  for  the  will.  1  Harr.  &  McHen. 
419.  The  clause  of  the  Maryland  act,  1798,  is,  "an  attested  copy, 
under  the  seal  of  office,  of  any  will,  testament,  or  codicil,  record- 
ed in  any  office  authorized  to  record  the  same,  shall  be  admitted 
in  evidence  in  any  court  of  law  and  equity,  provided  the  execution 
of  the  original  will  or  codicil  be  subject  to  be  contested,  until  a 
probate  hath  been  had  according  to  this  act." 

In  the  case  of  Darby  vs.  Meyer,  10  Wheat.  472,  the  Sup.  Ct.  of 


CH.  XII.]  FOREIGN   WILLS.  85 

the  U.  S.  in  commenting  on  this  act,  say — "  It  is  true  that  the 
generality  of  the  terms  in  the  first  lines  of  this  clause,  might,  un- 
restricted by  the  context,  embrace  wills  of  lands.  The  previous 
article  in  the  same  chapter,  prescribes  the  formalities  necessary  to 
devises  of  real  estate,  and  the  previous  sections  of  the  2d  chapter 
indicate  the  means  and  impose  the  duty  of  delivering  up  wills  of 
all  descriptions,  to  the  register  of  the  court  of  Probates,  for  safe 
keeping,  after  the  death  of  the  testator,  and  until  they  shall  be  de^ 
manded  by  some  person  authorized  to  demand  them  for  the  pur- 
pose of  proving  them.  But  the  act  does  not  authorize  the  regis- 
tering of  any  will  without  probate,  nx)r  relate  to  the  probate  of  mils, 
except  mils  of  goods  and  chattels." 

"  The  clause  recited  makes  evidence  of  such  wills  only  as  are 
recorded  in  the  offices  of  courts  authorized  to  record  them.  But 
when  the  power  of  making  wills  is  expressly  limited  to  wills  of 
personalty,  we  see  not  with  what  propriety,  the  meaning  of  the 
clause  in  question  can  be  extended  to  wills  of  realty.  The  Or- 
phan's court  may  take  probate  of  wills  if  they  affect  personalty, 
even  though  they  dispose  of  lands — but  the  will  nevertheless  is 
conclusively  established  only  as  to  the  personalty,*  Unless  the 
words  be  explicit  or  imperative  to  the  contrary,  the  construction 
must  necessarily  conform  to  the  existing  laws  of  the  State  on  the 
subject  of  wills  of  real  estate,  t  And  when  the  power  of  taking 
probates  is  confined  to  wills  of  personalty,  we  think  the  construc- 
tion of  the  clause  must  be  limited  by  the  context." 

"  There  is  nothing  in  the  clause  recited,  which  under  the  Con- 
stitution makes  the  document  offered  per  se,  evidence,  in  a  land 
cause.  And  there  is  no  law  in  Tennessee  which  could  make 
such  a  document  good  evidence  under  the  laws  of  that  State.  10 
Wheat.  472. 

§  8.  The  common  law  doctrine  on  this  subject,  no  one  disputes. 


*In  Mississippi,  the  Court  of  Probate  having  exclusive  jurisdiction  as  well  of 
wills  of  real  as  of  personal  estate,  the  reason  here  assigned*  does  not  apply  to  ex- 
emplified copies  of  its  acts.  i 

+  Where  the  construction  of  a  statute  has  been  fixed  by  the  Courts  of  the  State, 
which  enacted  it,  and  the  practice  of  the  State  Courts  has  been  in  conformity  to 
Buch  conBtruction,  the  Sup.  Ct.  U.  S.  will  relinquish  its  views  in  favor  of  the  form- 
er.   Otherwise,  it  will  adopt  its  own  views  of  construction.    10  Wheat.  470. 


86  FOREIGN    WILLS.  [CH.  XII. 

The  ordinarys  probate  was  no  evidence  of  the  execution  of  a  will, 
in  ejectment.  Where  the  will  itself  was  in  existence  and  could 
be  produced  in  evidence,  it  was  necessary  to  produce  it,  but  if 
lost,  secondary  evidence  was  necessarily  resorted  to.  But  what- 
ever proof  was  made,  was  required  to  be  made  before  the  court 
that  tried  the  cause — the  proof  before  the  ordinary,  being  ex  parte, 
and  the  heir  at  law  having  had  no  opportunity  to  cross-examine 
the  witnesses.  Neither  were  the  same  solemnities  required  to 
admit  the  will  to  probate,  as  were  indispensable  to  give  it  vdidi- 
ty,  as  a  devise  of  real  estate."  * 

"At  first  it  was  a  subject  of  controversy,  between  the  Common 
law,  and  the  Ecclesiastical  courts,  whether  a  will  containing  a  de- 
vise of  land,  should  not  be  precluded  from  probate,  although  con- 
taining a  bequest  of  personalty  also;  and  the  question  was  one  of 
serious  import,  since  the  common  law  courts  required  the  produc- 
tion of  the  original,  whereas  the  consequence  of  probate  was,  that 
the  original  should  be  consigned  to  the  archives  of  the  court  that 
proved  it.  This  was  at  length  compromised,  and  the  practice  in- 
troduced of  delivering  out  the  will,  when  necessary,  upon  securi- 
ty being  given  to  return  it."  t 


♦Whether  the  rule  that  a  will  of  lands  is  subject  to  the  laws  and  decisions  of  the 
State  where  it  lies,  is  restrained  by  that  clause  of  the  Constitution  which  declares, 
that  "full  faith  and  credit  shall  be  given  in  each  State  to  the  records,  &c.  of  every 
other  State" — and  whether,  therefore,  "a  will  of  lands  duly  recorded  in  one  State 
80  as  to  be  evidence  in  the  courts  of  that  State,  is  thereby  rendered  evidence  in 
the  courts  of  every  other  State — Provided,  the  record,  on  ike  face  of  it,  shows  that 
it  possessed  the  solemnities  required  by  the  law  of  the  State  where  the  land  lies;" 
the  court  declined  deciding  in  this  case.     10  Wheat.  470. 

t  In  Mississippi,  it  has  been  decided,  that  where  a  will  made  in  another  State 
is  probated  there,  and  a  copy  of  the  probated  will  is  admitted  to  probate  in  this 
State,  according  to  the  statute — How.  &  H.  388 — in  a  suit  for  a  legaa/  under  the 
will,  brought  in  the  Courts  of  this  State,  a  certified  copy  of  the  probate  of  the  will, 
from  the  Probate  Court  in  this  State,  will  be  admissible  evidence.  1  Sm.  &.  M. 
Ch.  R.  495. 


Ca.  Xlll.]  WHO  INCAPABLE  OF  DEVISING.  87 

CHAPTER  XIII. 

WHO    INCAPABLE    OF    DEVISING? 

§  1.  One  disability  to  make  a  will  arises  out  of  infancy — 
and  therefore  persons  under  the  age  of  21,  if  a  man,  or  18  years, 
if  a  woman,  cannot  make  a  valid  will.     How.  &  H.  p.  385. 

In  England,  a  male  at  15,  and  female  at  12,  may  make  a  will  of 
personal  estate,  if  proved  to  be  of  discretion.  2  Vern.  469.  Other 
books  say  17  and  18 — Co.  Litt.  89,  6 — But  as  the  common  law 
has  appointed  no  time,  and  this  is  a  matter  cognizable  in  the 
Spiritual  court,  which  proceeds  according  to  the  civil  law — by 
which  law  a  will,  by  an  infant  of  14  years,  of  his  personal  estate, 
will  not  be  controlled  in  Chancery  or  the  temporal  courts — the 
former  is  the  correct  opinion.  2  Mod.  315;  2  Ch.  Rep.  382;  2  Eq. 
cas.  ab.  283;  S.  C.  Pre.  Ch.  366;  1  Pick.  239.  And  such  will 
would  be  good,  though  the  person  afterwards  arrived  at  age  with- 
out confirming  it.  4  Ves.  160.  By  stat.  of  Charles  2d,  infants 
were  allowed  to  appoint  a  testamentary  guardian  for  any  child 
under  21,  and  not  married;  and  gave  to  such  person  the  custody 
of  the  infant's  estate  real  and  personal.  This  guardianship  drew 
after  it  the  custody  of  the  land,  which  the  father  could  not  devise. 
Vaugh.  178;  P.  Wm.  102. 

It  has  been  thought,  but  not  determined,  that  if  an  infant  de- 
vises the  guardianship  of  his  child,  (by  stat.  Ch.  2,  c,  24,)  such  a 
disposition  will  carry  with  it  the  land,  as  incident  to  the  guardian- 
ship. Vaugh.  177;  2.  P.  Wm.  102;  1  Jar.  Pow.  dev.  127,  cited 
in  3  Lomax,  8. 

§  2.  Another  disability  is  that  arising  from  idiotcy.  26  Wend. 
255.  Whether  idiot  or  not,  is  clearly  referable  to  the  circumstan- 
ces of  each  case.  And  if  such  a  one  make  his  will  ever  so  wise- 
ly it  is  void. 

One  deaf  and  dumb  from  nativity  is  presumed  to  be  an  idiot, 
but  this  may  be  rebutted ;  and  if  he  seem  to  understand  what  a 
testament  means,  and  has  a  desire  to  make  one,  he  may  by  signs 
and  tokens  declare  it. 

A  person  once  able  to  hear  and  speak,  by  some  accident  has  be- 
come deaf  and  dumb,  may,  if  he  can,  write  his  own  testament, 


S8  WHO  INCAPABLE  OF  DEVISING.  [CH.  XIU. 

with  his  own  hand — but  if  he  be  not  able  to  write,  he  will  in  all 

respects  be  regarded  as  one  deaf  and  dumb  by  nature. 

Such  as  can  speak  and  not  hear,  may  make  their  testament  as 
if  they  could  both  speak  and  hear.  Such  as  hear  and  do  not 
speak,  if  they  can  write,  may  make  their  testaments  themselves, 
by  writing — if  they  cannot  write,  by  signs  sufficiently  known  by 
those  present.     1st  Wm.  on  ex'rs.  (2d  Am.  ed.)  15,  36. 

§  3.  Another  disability  is  that  arising  from  the  restraint,  duress, 
or  menace  of  imprisonment  of  the  devisor.  1  Tuck.  Com.  pt.  2, 
290.  This  though  not  expressly  provided  against  in  the  statute, 
seems  necessarily  to  be  implied  from  the  words  of  the  act,  "at  his 
will  and  pleasure;" — and  consonant  thereto,  it  was  held  by  Roll. 
C.  J.  in  a  trial  at  bar,  that  if  a  man  make  his  will  in  his  sickness, 
(by  the  over  importuning  of  his  wife,)  to  the  end  that  he  may  be 
quiet,  this  would  be  a  will  made  by  restraint,  and  therefore  not  a 
good  will.    3  Lomax,  10,  and  note  2. 

But  there  must  be  actual  proof  of  some  undue  importunement 
of,  or  restraint  upon  the  devisor,  or  the  law  will  not  avoid  a  will 
regularly  made.  Dyer,  143;  Raym.  334;  Sty.  427;  1  Ch.  R.  66; 
Com.  dig.  Tit.  Devise  H.  1;  Rep.  Ch.  125;  3  Ch.  C.  103,  cited  in 
3  Lomax,  10. 

§  4.  As  to  insane  persons,  see  post. — title,  sanity  of  testator. 

§  5.  Every  person  not  embraced  in  the  class  of  persons  disa- 
bled by  the  statute,  may  make  a  will,  be  his  understanding  ever 
so  weak.    26  Wend.  255. 

A  testator  need  not  be  capable  of  managing  his  business  gener- 
ally ;  it  is  sufficient,  if  in  making  his  will,  he  understands  what 
he  is  doing.  9  Conn.  102;  26  Wend.  255;  see  8  Conn.  254;  8 
Watts,  66;  1  Paige  171;  8  Mass.  371;  1  Yeates,  108;  3  Knapp. 
Pro.  Com.  122. 

§  6.  In  Pennsylvania,  a  feme  covert  cannot  dispose  of  lands 
either  with  or  without  her  husband's  consent.  10  S.  &  R.  84 — 
So  in  New-Hamp.— 5  N.  H.  205. 

The  disability  of  coverture  differs  materially  from  that  of  infan- 
cy, idiocy,  or  lunacy ;  it  being  the  creature  of  civil  policy,  and  not 
arising  from  any  natural  infirmity.  And  therefore  this  disability 
may  be  removed  by  the  contracting  parties  through  whom  the 
property  is  derived — so  far  as  the  jus  dispenondi  is  concerned — but 


CH.  Xlll.]  WHO  INCAPABLE  OF  DEVISING.  89 

in  the  case  of  infancy,  idiocy,  and  lunacy,  any  such  attempt  would 
be  abortive.  3  Atk.  897;  2  Ves.  Sn'r.  298 — cited  in  1  Jarman  on 
wills,  33, 

In  England,  a.  feme  covert  cannot  devise  lands,  nor  can  she  be- 
queath chattels  without  the  consent  of  her  husband.  And  such 
a  will  being  a  nullity,  will  not  be  admitted  to  probate  in  the  Ec- 
clesiastical courts.  For  all  her  chattels  are  absolutely  his,  and  he 
may  dispose  of  them,  as  his  own,  if  he  survives; — it  would  be  in- 
consistent with  this  power,  to  allow  the  wife  to  bequeath  them. 
1st  Wms.  ex'rs.  (2d  Am.  ed.)  42  to  48. 

But  as  the  husband  has  no  interest  in  chattels  held  by  his  wife, 
as  executrix,  the  law  allows  her,  in  respect  to  these,  to  make  a 
will,  without  her  husband's  consent.  Ibid.  So,  she  may  appoint 
an  executor  without  her  husband's  consent.  Moor.  340;  2  And. 
92;  1  Mod.  211, 212;  2  East.  656. 

And  as  the  husband  may  waive  the  interest  which  the  law 
gives  him,  he  may  authorise  his  wife  to  dispose  by  will  of  her 
personal  estate:  But  he  must  consent  to  the  particular  will, 
which  she  had  made,  and  this  consent  must  be  given  when  it  was 
proved — for  he  may  revoke  it  at  any  time  before  probate.    Ibid. 

But  this  consent  may  be  implied ;  and  if  after  her  death,  he 
consents  to,  or  acts  on  the  will,  he  cannot  oppose  the  probate ; — 
and  but  little  proof  will  be  required  of  a  continuance  of  his  assent 
to  a  will  made  with  his  express  consent.  Ibid.  2  Mod.  172;  Eq. 
cas.  abr.  66.  If  in  the  hand-writing  of  the  husband,  it  is  a  suffi- 
cient indication  of  his  assent,  though  not  republished  after  his 
death.  1  Des.  366;  2  ib.  66— see  also  1  Iredell,  514;  2  Kent,  (5th 
ed.)  170;  4  ib.  505;  4  Har.  &  J.  446. 

But  such  will  is  only  good  against  him,  in  case  he  survives ; 
and  not  against  her  next  of  kin,  if  his  wife  survives  him,  as  to 
property  she  acquired  during  coverture.  But  she  may  after  his 
death,  make  it  operative,  by  republication.  Ibid.  A  will  made 
by  wife  during  coverture,  with  her  husband's  consent,  cannot  pass 
property  acquired  after  his  death.  1  Wms.  ex'rs.  (2d  Am.  ed.) 
42,  48;  5  East.  552;  15  Ves.  139. 

Jus  disponendi  is  an  incident  to  personal  estate ;  therefore  a 
married  woman  owning  personal  estate,  in  her  separate  right, 
may  dispose  of  it  by  will.    3  Rand.  373. 
12 


9lft  WHO  INCAPABLE  OF  DEVISING.  [CH.  Xlll. 

So  of  its  accretions  and  produce.  1  Ves.  Jr.  46;  3  Bro.  Ch.  cas. 
8;  2Vern.535;  3P.  Wms.SSa— (Butsee5Ves.79;  2  Swans.  62; 

1  Freem.  304.) 

A  feme  covert  may  under  certain  circumstances,  dispose  of  her 
property  by  will — 5  B.  Monroe,  370 — of  land  as  well  as  person- 
alty. 12  Mass.  525;  5  N.  Hamp.  205;  10  S.  &  R.  445;  1  M'Cord, 
225;  Powell  on  dev.  450,  A  husband  may  bind  himself  by  a- 
greement  or  bond  to  permit  his  wife  to  dispose  of  her  property 
by  will  during  coverture,  and  he  will  be  bound.  1  Vem.  244, 245; 

2  ib.  329. 

A  woman  owning  land  may  before  marriage,  by  deed  convey 
her  land  to  trustees  in  trust,  for  her  own  separate  use  during  co- 
verture and  afterwards,  for  such  person,  as  she  shall  by  writing 
in  the  nature  of  a  will,  appoint — and  in  default  of  such  appoint- 
ment to  her  heirs ; — and  if  she  afterwards  make  such  appoint- 
ment, it  will  be  a  good  declaration  of  the  trust — 3  Rand.  378; 
Pow.  on  dev.  134;  Sugden,  ch.  4,  sec.  1 — and  such  reservation 
may  include  all  lands  devolving  on  her  after  coverture.  Amb.  565; 
2  Sch.  &  Lef.  456; — and  there  is  no  difference  in  this  respect  be- 
'tween  legal  and  equitable  estate.  Ibid.  See  also  2  Dallas,  199. 

But  if  the  legal  estate  remains  in  her,  and  there  is  only  an  a- 
greement  between  her  and  her  husband,  that  she  may  dispose  of 
the  land  by  deed  or  will,  such  disposition,  though  it  may  bind  the 
husband,  will  be  void,  as  against  the  heir.  2  Ves.  190;  1  ib.  301; 
2  Bro.  C.  C.  cas.  534;  1  Madd.  Ch.  375.  But  it  will  not  then  op- 
erate as  a  will,  but  as  a  gift  from  the  husband.  1  Mod.  11. 

So  if  land  be  given  to  a  married  woman,  she  has  no  power  to 
dispose  of  it,  though  given  to  her  sole  and  separate  use — unless^ 
the  devise  to  her,  gives  her  express  power  to  appoint  by  deed  or 
will  the  person  who  shall  take,  notwithstanding  her  coverture.  Ib. 
— And  the  intervention  of  trustees  is  not  material.  Ibid. 

A  feme  covert's  will  made  under  a  power,  if  obtained  by  mari- 
tal authority  and  undue  influence,  contrary  to  her  real  wishes 
and  intentions,  is  void,  and  not  entitled  to  probate.  1  Wms.  ex'rs. 
(2d  Am.  ed.)  42,  48. 

A  woman  whose  husband  has  abjured  the  realm,  or  been  ban- 
ished for  life,  is  in  England  a  feme  sole,  and  may  make  a  will.  1 
Inst.  133;  2  Vem.  104;  Pew.  dev.  148;  2  Desaus.  244;  3  Balal. 


OH.  Xm.J  WHO  INCAPABLE  OF  DEVISING.  fl 

188;  2  Ross  prop.  123;  3  Lomax,  9;  2  Bro.  Ch.  C.  385.  For  as 
he  is  civilly  defunct,  she  is  restored  to  her  rights  and  privileges  of 
a  /erne  sole.    2  Vem.  104. 

The  Court  of  Probate  is  bound  to  consider,  whether  the  power 
has  been  duly  executed,  before  giving  it  the  sanction  of  its  seal. 
But  if  there  be  doubt,  it  is  the  safer  course  to  admit  the  paper  to 
probate,  inasmuch  as  such  probate  will  not  alone  be  sufficient  to 
induce  a  Court  of  Equity  to  act  upon  it ;  but  if  the  Court  of  Pro- 
bate reject  it,  its  sentence  would  be  final.  Wms.  ex'rs.  (2  Am.  ed.) 
42  to  48. 

In  Kentucky,  it  has  been  decided  that  "  if  a  power  to  a  feme 
covert  to  dispose  of  land  by  will  is  shown  to  the  Probate  Court, 
on  her  will  being  offered  for  probate,  the  court  cannot  inquire  if 
that  power  has  been  properly  exercised.  And  an  agreement,  by 
the  husband,  after  marriage  that  the  wife  shall  have  such  power 
to  dispose  of  property  held  by  her  before  marriage,  is  prima  facie 
valid ;  and  in  such  case  it  is  proper  to  order  to  record  also,  the  in- 
strument conferring  the  power.    5  B.  Monroe,  376. 

See  also  15  Ves.  139, 154;  Doug.  707;  3Atk.l56;  1  Burr.  431; 
2Bro.Ch.C.  392. 

Courts  of  Equity  will  effectuate  dispositions  by  femes  coverts, 
in  the  nature  of  appointments  under  marriage  articles,  both  a- 
gainst  her  husband  and  her  heirs.  And  it  is  no  objection  that 
the  wife's  devisees  are  strangers  in  favor  of  whom  equity  would 
not  have  supplied  the  defective  execution  of  a  power ;  nor  is  it 
material,  as  between  the  parties  themselves,  whether  the  articles 
were  made  before  or  after  marriage,  with  this  qualification,  that 
the  heirs  cannot  be  affected  by  the  wife's  contract  during  covert- 
ure.   3  Rand.  373. 

§  7.  If  a  person  laboring  under  any  one  of  the  foregoing  disa- 
bilities, make  a  will,  and  afterwards  the  disability  be  removed  or 
cease,  the  will  is  not  thereby  made  good ;  for  it  was  void  in  its 
inception,  and  the  rule  is,  that  the  devisor  must  be  capable  at 
the  time  of  the  execution  of  the  will.  Rob.  on  wills,  30;  Pow. 
dev.  140;  Dyer,  143,  6;  Anderson  R.  182;  Ca.  T.  Holt,  246;  lb. 
747;  11  Modem,  157;  2  Eq.  ca.  abr.  357;  Comb.  84;  2  Vernon, 
475. 

But  if  the  will  had  been  republished  after  the  disability  ceased, 


92  WHO  MAY  BE  DEVISEES.  [CH.  XIV. 

it  would  thereby  become  valid.    1  Salk.  238 — (and  see  Republi- 
cation, ante)  and  2  Vern.  475. 

And  if  the  will  had  been  made  before  any  such  disability  ex- 
isted, the  subsequent  occurrence  of  any  such  disability  would  not 
have  impaired  it.    2  Munf.  209. 


CHAPTER  XIV. 


WHO   MAY    BE   DEVISEES. 


§  1.  All  natural  persons  who  are  in  esse  at  the  time  when  the 
will  is  made,  and  capable  of  acquiring  lands  by  purchase,  may  be 
devisees.    Jarm.  Pow.  on  dev.  254. 

And  though  once  doubted,  it  is  now  settled  that  an  infant  en 
ventre  sa  mere  may  be  devisee.  1  Jar.  Pow.  dev.  260,  263;  2  H. 
Bl.  399;  2  Bro.  Ch.  ca.  320,  S.  C;  2  Ves.  Jr.  673;  5  S.  &  R.  38;  4 
Ves.  334;  2  Ves.  &  Be.  367,  cited  in  3  Lomax,  11;  Raym.  163; 
Freem.  244.  And  the  freehold  shall  not  be  in  abeyance,  but  shall 
descend  in  the  mean  time  to  the  heir  at  law.     Ibid. 

§  2.  A  married  woman  may  be  a  devisee — Lit.  S.  168;  1  Inst. 
112 — even  of  her  husband,  because  it  takes  effect  only  after  his 
death.  Ibid.  Co.  Litt.  112;  Roll.  ab.  610.  And  though  a  devise 
to  a  wife  against  the  consent  of  her  husband,  will  be  void  at  law, 
yet  equity  will  interpose  in  such  a  case  and  save  to  the  wife  the 
benefit  of  such  devise.    Jarm.  Pow.  dev.  254.* 

§  3.  An  alien  may  take  by  devise,  but  in  England  it  is  doubt- 
ful for  whose  benefit.    2  Ves.  362;  Noy,  137.  t    See  Descent. 


'A  devise  to  A  and  wife  and  their  heirs,  makes  the  devisees  tenants  in  com- 
mon.   2  Ohio  repts.  306—9  Mass.  161. 

t  In  Virginia,  all  persons  who  migrate  thither,  (not  b^ing  alien  enemies^  and 
declare  their  intention  to  reside  therein,  are  entitled  to  purchase  and  hold  lands, 
as  cititens  can  do.    Acta,  1 833. 


CH.  XIV.]  WHO  MAY  BE  DEVISEES.  9^ 

In  Virginia  it  has  been  held  on  the  principles  of  the  English 
law,  (independent  of  statute,)  that  an  alien  whether  friend  or  en- 
emy, might  take  by  devise  as  well  as  by  grant,  and  would  be  ca- 
pable of  conveying,  before  office  found. 

§  4.  A  bastard  may  be  a  devisee  of  land.  1  Pow.  dev.  266 ; 
Ram.  wills,  50, 52,  cited  in  3  Lomax,  11. 

But  if  a  person  devise  to  a  born  illegitimate  child  of  A,  the  fa- 
ther or  mother — it  must  be  reputed  at  the  time  of  the  devise,  the 
child  of  A — and  this  may  be  proved  by  parol. 

But  parol  proof  cannot  be  admitted  to  prove  that  the  testator 
intended  to  include  an  illegitimate  child.  This  must  be  manifest 
from  the  will  itself.  1  Ves.  &  Be.  422;  1  Mad.  R.  430;  2  Pow. 
dev.  343;  Turn.  &  Russ.  310. 

Neither  can  proof  be  allowed  that  a  person  is  the  illegitimate 
child  of  A,  but  only  to  show  that  he  was  so  reputed — for  if  the 
former  were  allowed,  indecent  evidence  might  be  introduced. 
Therefore  where  A  devised  "to  the  child  of  which  A  is  enceinte 
by  me,"  the  gift  failed.  17  Ves.  528;  1  Mer.  152;  1  Ves.  &  Be. 
435.  But  if  an  illegitimate  child,  in  ventre  matris,  be  described 
as  "the  child  of  which  A  B  is  now  pregnant,"  it  may  take  under 
such  description.  1  Mer.  141;  2  Pow.  dev.  359 — See  also  1  P. 
Wms.  529. 

§  5.  A  devise  to  an  unknown  person  upon  a  certain  future  e- 
vent  may  be  good — as  to  such  person  as  shall  marry  the  daughter 
of  A.  So  a  devise  to  a  person  not  in  existence  may  be  good — as 
to  the  first  son  of  A  B,  who  then  has  no  son — and  this  by  way  of 
remainder,  or  executory  devise.  1  Jarm.  Pow.  dev.  260;  T.  Raym. 
82;  2  Ves.  &  Be.  367;  Raym.  162;  Freem.  244;  Feame's  Cent 
rem.  428;  Salk.  227. 

§  6.  In  England,  the  statute  of  Henry  8th  forbade  a  corporation 
to  take  by  devise,  because  they  never  answered  the  feudal  servi- 
ces, and  were  restrained  by  the  statute  of  mortmain.  Roll.  abr.  608. 
In  the  United  States  a  corporation  may  take  for  charitable  purpo- 
ses— provided  the  trust  be  not  foreign  to  the  purpose  of  its  incor- 
poration, and  provided  the  benficiaries  be  certain  and  definite. 
See  4  Wheat.  R.  1;  3  Leigh,  450;  11  Mass.  419;  2  Russ.  &  My. 
107.  But  see  4  Kent's  Com.  507,  508,  and  5  Russ.  112.  In  the 
last  case,  the  devise  was  to  Guernsey  hospital — there  being  two 


94  ■  SANITY  OF  TESTATOR.  [CH.  XV. 

hospitals  there — ^the  legacy  was  held  good  for  charitable  purpo- 
ses. 

§  7.  If  a  devise  be  made  to  an  unincorporated  association,  in 
trust  for  the  education  of  youth  who  shall  appear  promising  for 
the  ministry,  "or  such  like  purpose,"  the  association  cannot  take 
such  trust,  as  a  society,  because  not  incorporated.  4  Wheat.  372; 
12  Mass.  rep.  537.  Nor  could  the  bequest  be  taken  by  them  as 
private  individuals,  because  no  benefit  was  intended  to  them. 
Nor  could  the  trust  be  executed  by  them  as  private  individuals, 
because  it  was  devised  to  the  association.  4  Wheat.  372 — See 
also  3  Leigh,  450. 


CHAPTER  XV. 

SANITY    OF    TESTATOR. 

§  1.  Mad  folks,  and  lunatic  persons,  during  the  time  of  their 
furor  or  insanity  of  mind,  cannot  dispose  of  any  thing  by  will, 
because  they  know  not  what  they  do.  For,  in  making  testaments, 
the  perfectness  and  integrity  of  mind,  and  not  health  of  the  body, 
is  requisite ; — and  thereupon  arose  that  clause,  "sick  in  body,  but 
of  perfect  mind  and  memory."  Swinb.  on  wills,  76;  1  Peters  Ct. 
Ct.  repts.  163.  If  a  lunatic  or  mad  person  make  a  will  during 
insanity,  and  afterwards  recover  his  reason,  such  will  is  not  there- 
by rendered  valid.  But,  if  a  man  of  good  and  perfect  memory 
make  his  will,  and  afterwards  become  insane,  the  will  is  not  there- 
by revoked.    Swinb.  67. 

The  question  of  sanity  is  a  question  of  fact  peculiarly  for  the 
decision  of  a  jury,  and  the  party  alleging  the  insanity  of  a  testa- 
tor, for  the  purpose  of  impeaching  his  will,  must  establish  it  by 
the  most  clear  and  satisfactory  evidence.  3  Humph.  278.  Fot, 
the  law  always  presumes  sanity,  or  perfect  mind  and  memory,  till 
the  contrary  be  proved — Swinb.  77 — ^and  the  burden  of  proof 


OH,  XV.]  SANITY  OF  TESTATOR.  95 

rests  on  those  affirming  the  insanity  of  a  testator  or  testatrix.  lb. 
And  see  also  Const,  repts.  So.  Car.  225;  1  Peters  C.  C.  repts.  133, 
153;  5  John,  repts.  144;  1  Mass.  repts.  71,  335;  4  ib.  593;  6  ib. 
397;  8  ib.  371;  12  ib.  488;  7  Pick.  94;  9  ib.  39;  18  ib.  115;  4 
Wash.  C.  C.  repts.  262;  3  ib.  580;  1  Metf.  204, 21 1 ;  1  Green's  Ch. 
repts.  8;  4  Eng.  Eccl.  repts.  181. 

But  if  the  testator,  prior  and  subsequent  to  the  date  of  the  will, 
be  insane,  proof  of  his  competency  on  the  day  the  will  was  execu- 
ted will  render  the  will  valid.  4  How.  (Miss.)  repts.  459,  and  the 
foregoing  authorities,  passim.  And  in  case  of  such  prior  insani- 
ty, the  burden  of  proving  the  sanity  of  the  testator,  at  the  date  of 
the  will,  is  shifted  upon  those  who  set  up  the  will.  4  Call,  423; 
4  Wash.  C.  C.  repts.  262;  5  John,  repts.  144;  1  Green's  (N.  J.) 
Ch.  repts.  8;  17  Mass.  188;  10  Pick.  378;  1  Metcalfe,  221;— See 
also  English  decisions— 3  Bro.  Ch.  C.  441;  13  Ves.  87;  1  Phill. 
100;  1  Eccl.  repts.  47.  •    • 

But  evidence  of  insanity  long  after  the  making  of  the  will,  is 
not  admissible,  to  shift  the  burden  of  proof  from  those  alleging 
insanity.  9  Mass,  225.  Though  acts  of  insanity  occurring  after 
the  execution  of  the  will,  may  be  proved  and  reflect  back  upon 
acts  otherwise  equivocal,  about  the  time  of  the  will.  5  Eccl.  rep. 
223. 188;  3  ib.  270,  109.* 

If  a  "  lucid  interval"  at  the  making  of  the  will  be  ptoved,  the 
will  is  thereby  rendered  valid,  if  otherwise  perfect  and  legal. — 
Swinb.  76,  and  the  foregoing  decisions  passim.  Even  though 
testator  be  under  guardianship,  as  non  compos.  12  Mass.  488;  18 
Pick.  115;  9  Ves.  610. 

Great  caution  must  be  observed  in  admitting  proof  of  "  lucid 
interval,"  after  the  prior  insanity  of  the  testator  has  been  estab- 
lished. 1  Phillim.  82;  2  Add.  445;  3  ib.  210;  1  Wms.  on  ex'rs. 
18. 

If  a  lunatic  wrote  his  will,  in  his  own  natural  manner,  and  its 
provisions  are  sensible,  proper  and  judicious,  the  will  itself  proves 


•Where  there  was  evidence  of  delusion,  and  other  indicia  of  derangement,  ex- 
isting shortly  before,  as  well  as  after  the  acts,  proof  of  calmness,  and  of  his  doing 
formal  matters  of  business,  under  the  sanction  of  his  family,  are  not  sufficient  to 
r#bat  the  presumption  against  the  papers.    4  Eng.  Eccl.  repts.  181. 


96'  SANITY  OF  TESTATOR.  [CH.  XV. 

that  when  he  wrote  it  he  had  a  lucid  interval*  9  Dana,  443. 
It  is  a  rational  act,  rationally  done,  and  nothing  is  left  for  pre- 
sumption against  a  lucid  interval — 1  Phill.  90 — And  it  is  suffi- 
cient if  the  lucid  interval  be  long  enough  to  do  the  rational  act 
intended.     Ibid. 

An  inquisition  of  lunacy  is  competent  testimony,  on  a  question 
of  sanity,  but  not  conclusive.    1  Green's  Ch.  rep,  8.    It  will,  how- 
ever, raise  a  presumption  of  incapacity  to  make  a  will.    18  Pick,^ 
115.    But  his  guardian  may  show  that  he  was  sane.   Ibid. — and 
see  12  Mass.  488. 

Sanity  of  mind,  or  a  disposing  memory,  is  not  such  a  memory 
only  as  to  make  proper  answers  to  common  and  familiar  ques- 
tions, but  to  be  able  to  dispose  the  estate  with  intelligence  and 
reason.    Swinb.  77,  82,  (9) 

The  testator  must  have  had  at  the  time  of  making  his  will,  that 
soundness  of  mind  and  memory,  enabling  him  to  understand  the 
nature  of  the  instrument  signed  and  sealed,  the  relative  situation 
of  his  family  and  connections,  the  general  extent  of  the  property 
disposed  of,  and  that  it  was  disposed  of  agreeably  to  his  desire. 
Southard,  670,  (N.  J.)  A  disposing  mind  or  memory  is  the  capa- 
city of  recollecting,  discerning,  and  feeling  the  relations,  connec- 
tions and  obligations  of  family  and  blood.    South.  458. 

A  testator  must  have  memory — but  though  his  memory  be  too 
imperfect  to  direct  the  terms  of  a  contract,  he  may  yet  be  compe- 
tent to  make  a  will.t    9  Connt.  102;  4  Wash.  Cir.  Ct.  repts.  262.. 


*And  a  memorandum  made  out  by  the  testator,  concerning  his  unsettled  busi- 
ness, for  his  executors,  proving  substantially  correct,  in  all  its  particulars,  strength- 
ens the  conclusion  resulting  from  the  intrinsic  propriety  of  the  will.  9  Dana, 441, 
442— See  also  1st  Phill.  90. 

An  inference  in  favor  of  the  validity  of  a  will,  drawn  from  the  fact  that  many 
of  its  provisions  are  like  those  of  a  former  will,  executed  by  the  testator  when  he 
was  undoubtedly  of  a  disposing  mind — is  more  than  rebutted  by  the  fact,  that  the 
pretended  last  will  bears  a  still  closer  resemblance  to  a  paper  purporting  to  be  a 
will,  signed  by  the  testator  when  he  was  clearly  not  of  disposing  mind.  1  Dana, 
164. 

t  In  Groom  vs.  Thomas,  3  Eccl.  repts.  191 — Sir  John  Nichol  says — "  In  this  caae 
the  deceased  did  not  'reword' — he  varied,  added,  and  omitted,  without  any  change 
of  circumstances  to  account  for  these  fluctuations  of  intention.  It  is  impossible 
to  surmise  what  fancy  a  deluded  imagination  may  take  up  and  act  on;  and  on 
that  very  account  the  law  has  wisely  ordained,  that  where  any  delusion  exists  at 
the  time,  it  is  not  necessary  to  connect  that  delusion  with  the  act  done,  and  which  it  ia 
sought  to  avoid.  Here  indeed  the  fancies  of  the  deceased  were  not  wholly  con- 
nected with  the  testamentary  disposition.    He  fancied  hit  nephew  wanted  tomvrifr 


CH.  XV.]  SANITY  OF  TESTATOR.  97 

And  it  should  appear  that  the  testator  had  a  sound  and  disposing 
memory,  (i.  e.)  that  he  )vas  capable  of  making  his  will  with  an 
understanding  of  what  he  was  doing,  a  recollection  of  the  prop- 
erty intended  to  be  disposed  of,  of  the  objects  of  his  bounty,  and 
the  manner  of  distributing  his  property.  1  Peters  Ct.  Ct.  repts. 
163.  It  is  not  necessary  that  he  should  view  his  will  in  its  legal 
form,  or  comprehend  it  in  that  way.  It  is  enough  if  he  under- 
stands the  elements  of  which  it  is  composed,  and  the  disposition 
of  them  in  their  simple  forms.  Ibid.  He  should  be  able  to  make 
intelligible  to  the  scrivener  the  dictates  of  his  mind — for  it  is  the 
soundness  of  the  mind  and  not  of  the  body  which  is  to  be  regard- 
ed, lb.  See  also,  8  Mass.  371;  8  Connt.  repts.  154;  9  ib.  102;  2 
B.  Mon.  repts.  74.* 

However  inferior  the  capacity,  or  weak  the  understanding, 
whether  it  arise  from  natural  or  adventitious  causes,  if  a  man 
possess  mind  sufficient  for  the  transaction  of  ordinary  business  of 
life,  there  can  be  no  question  but  that  he  can  make  a  will.  1 
Bail.  S.  C.  repts.  92.  Although  the  mind  of  a  testator  may  have 
been  greatly  impaired  by  disease,  his  minute  recollection  of  in- 
structions given  for  preparing  his  will  twenty-four  hours  before, 
is  wholly  inconsistent  with  that  imbecility  and  alienation  of  mind 
which  incapacitates  for  making  a  will.    Ibid. 

Evidence  that  a  testator  had  diminished  a  large  estate,  is  no 
evidence  of  his  insanity,  or  that  he  was  of  unsound  mind,  or  in- 
capable of  devising.  17  Pick.  373.  On  the  other  hand,  capacity 
to  make  property  and  to  take  care  of  it,  is  evidence  of  sanity,  but 
not  conclusive.    3  Humph.  278. 

Suicide  is  not  conclusive  evidence  of  insanity,  but  is  admis- 
sible evidence  to  show  the  absence  of  a  sound  mind.  4  Humph. 
191— See  also  7  Pick.  94. 


Jiim — he  quarreled  with  his  brother — they  were  displaced  from  being  executors 
and  residuary  legatees — they  have  a  very  inferior  benefit — he  might  not  be  per- 
fectly consistent  in  leaving  them  any  thing,  and  in  doing  the  act  itself,  he  might 
be  80  apparently  rational  as  not  to  expose  his  derangement  of  mind  to  the  sol'r. 
who  had  no  previous  suspicion  of  it.    3  Eccl.  Repts.  191. 

•The  testator  may  not  have  sufficient  strength  and  vigor  of  intellect  to  make 
and  digest  all  the  parts  of  a  contract,  and  yet  be  competent  to  direct  the  distribu- 
tion of  his  property  by  will.  The  question  is  this — Were  his  mind  and  memory 
sufficiently  sound  toeBable  him  to  know  and  understand  the  business  in  which  ne 
was  engaged,  at  the  time  of  making  hia  will  ?    4  Wash.  C.  C.  repts.  466-7. 

13 


Pd  SANITY  OF  TESTATOR.  [CH.  XV. 

It  is  a  fact  universally  known  that  a  person  may  be  non  corri' 
pos  mentis,  and  yet  possess  great  vigor  qf  intellect,  unusual  pow» 
er  of  reasoning,  peculiar  subtilty  and  shrewdness,  and  a  strong 
recollection  of  all  the  relations  he  stands  in  to  others,  as  well  as 
of  all  the  acts  and  circumstances  of  his  life.  His  mind  is,  how* 
ever,  unsound,  by  reason  of  the  delusive  sources  of  thought.  All 
his  deductions,  mthin  the  scope  of  his  malady,  being  founded  on 
his  assumption* of  things  as  realties,  without  any  foundation,  or 
so  distorted  and  disfigured  by  fancy,  as,  in  effect,  to  amount  to 
the  same  thing.    8  Connt.  repts. 

Where  a  man  had  a  groundless  hatred  towards  his  relatives  and 
great  fear  of  them,  apprehending  that  they  would  attempt  to  get 
his  estate  from  him  before  his  decease,  and  that  they  were  lying 
in  wait  for  him  to  shoot  him,  proceeding  from  partial  derange- 
ment, though  sane  on  other  subjects,  and  Under  this  partial  de- 
rangement, made  his  will,  seeming  to  the  witnesses  to  be  in  his 
right  mind,  the  will  was  rejected  by  the  Court,  for  want  of  testa* 
mentary  capacity  in  the  testator.  1  Littel's  repts.  371.  But  where 
a  will  is  written  wholly  by  the  testator,  and  well  written,  and 
makes  only  such  disposition  of  his  property  as  is  consistent  with 
the  affections,  duties,  objects  and  principles,  which  he  has  al* 
ways  avowed  and  professed  when  his  sanity  was  unquestioned 
and  unquestionable,  it  is  the  best  evidence  that  he  was  possessed 
of  a  disposing  mind  when  he  wrote  it.    9  Dana,  441. 

Care  must  be  taken  not  to  confound  a  weakened  intellect  with 
one  that  is  lost,  and  that  singularity  be  not  taken  for  insanity.* 
9  Connt  repts.  102.    See  1  Bail.  S.C.  repts.  92. 


*There  are  many  circumstances,  which  though  not  of  themselves  establishing 
ftctual  insanity,  which  had  not  before  become  decided,  are  still  strong  indicia  of 
its  continuance' — such  as  great  irritability,  violent  passions,  occasionally  deep  de- 

t)ression,  eccentric  habits,  suspiciousness,  inconsistency,  changeablenesa  and  the 
ike.  If  actual  insanity  has  never  existed,  many  or  most  of  these  circumstances 
may  occur,  and  yet  not  establish  positive  derangement.  But  where  actual  insan- 
ity  has  existed  previously,  lighter  things  become  confirmations.  3  Eccl.  repts.  186, 
in  case  of  Groom  vs.  Thomas. 

Religious  impressions  producing  extreme  anxiety,  even  to  hopeless  depair,  cau> 
Bed  by  a  conviction  that  the  sufferer  had  lost  his  day  of  grace,  and  so  overwhelm- 
ing as  to  render  him  unconcerned  and  listless  on  all  other  subjects,  may  exist  con- 
sistently with  an  unimpaired  wisdom,  and  of  course  does  not  justify  the  conclu- 
sion, that  one  so  affected  is  incapable  of  making  a  rational  and  valid  will. — And 
if  when  his  attention  can  be  diverted  to  other  things,  he  is  rational  and  sensible, 
ju  to  than,  it  tends  strongly  to  prove,  that  his  mind  is  not  unsound.    9  Dana,  440. 


CH.  XV.]  SANITY  OF  TESTATOR.  99 

Greatness  of  testator's  age  is  not  proof  of  his  incapacity  to  make 
a  will.  A  man  100  years  old  may  be  very  competent.  4  Call, 423. 
If  a  testator  be  86  years  old,  and  dictate  his  own  will,  and  the  pro- 
visions of  it  manifest  intelligence  and  sound  moral  sentiments, 
and  be  not  procured  by  duress  or  other  undue  influence,  the  will 
should  be  sustained.  2  B.  Mon.  repts.  74,  So,  if  he  be  rational 
in  all  his  acts  and  conversation,  and  superintend  with  care  and 
intelligence  all  his  domestic  concerns,  litigations,  contracts  for 
hiring  and  the  sale  and  purchase  of  land  and  negroes,  though  his 
physical  energies  be  impaired,  he  has  capacity  to  make  a  will. — 
Ibid.  79.  But  it  is  otherwise  if  the  testator  had  grown  childish 
with  age.    8  Connt.  repts.  39. 

People  of  mean  understanding  and  capacities,  neither  of  the 
wise  sort  or  the  foolish,  but  indifferent  betwixt  both,  even  though 
they  rather  incline  to  the  foolish  sort,  are  not  hindered  from  mak- 
ing their  wills.  The  law  will  not  scrutinize  into  the  depth  of  a 
man's  capacity,  particularly  after  his  death,  if  he  was  able  to  con- 
duct himself  reasonably  in  the  common  course  of  life ;  as  it  might 
be  opening  a  wide  door  to  support  pretensions  of  fraud  or  impo- 
sition on  the  testator.    4  Coke,  61. 

One,  overcome  with  drink,  is  equally  incapable  of  using  his 
reason,  during  his  drunkenness,  as  a  madman.  And  therefore, 
if  he  makes  his  will  at  that  time,  it  is  void.    2  Com.  C.  32. 

The  law  considers  drunkenness  as  voluntary  madness,  and  a 
person  in  that  state  can  no  more  make  a  valid  testament  than  oth- 
er madmen  or  lunatics.  If  a  man  be  partially  intoxicated  and  ex- 
hilerated  with  liquor,  and  his  understanding  somewhat  clouded 
and  obscured,  he  may  make  a  good  testament ;  but  he  who  by  a 
continued  custom  of  toping,  or  by  an  excess  of  drunkenness,  has 
exiled  his  intellects  in  such  a  manner  that  he  has  totally  lost  the 
rational,  and  reserved  nothing  but  the  animal,  is  altogether  in- 
capable of  making  a  valid  testament.    Swinb.  74. 

Drunkenness,  merely  of  itself,  is  no  legal  exception  to  the  va- 


A  belief  that  there  are  degrees  of  happiness  in  a  future  state  of  existence,  and 
this  happiness  was  in  proportion  to  the  amount  of  property  a  man  had  acquired 
here,  and  the  charitable  use  he  had  made  of  it,  constitutes  no  evidence  of  insanitj, 
3  Humph. 278.  No  religious  creed  can  be  regarded  as  insanity,  there  being  no  test 
by  which  their  truth  can  be  ascertained.    IMd, 


100  SANITY — WHAT  PROOF  ADMISSIBLE.        [CH.  XV. 

lidity  of  a  will,  unless  it  absolutely  disables  the  party  from  dis- 
posing of  his  estate  with  reason  and  intelligence.  2  Yeates,  48. 
The  time,  to  which  enquiry  into  the  sanity  of  the  testator  must 
be  directed,  is  the  time  of  executing  the  will,  3  Wash.  C.  C.  rep. 
580;  4  Call,  423;  9  Conn.  86;  9  ib.  102— But  see  1  Littel,  102,  & 
1  Mass.  71. 

SANITY WHAT  PROOF  ADMISSIBLE. 

On  a  question  of  sanity,  and  capacity  of  the  testator — his  dec- 
larations, at  the  time  of  making  the  will,  may  be  given  in  evi- 
dence.   2  Southard,  589. 

Where  the  capacity  of  the  testator  is  doubtful,  the  reasonable- 
ness of  his  will,  is  a  circumstance  in  favor  of  his  capacity;  and  in 
judging  of  its  reasonableness,  due  allowance  must  be  made  for 
the  caprice,  which  even  a  wise  man  has  a  right  to  indulge,  in  the 
disposition  of  his  estate.     1  Bailey's  S.  C.  repts.  92. 

The  testamentary  witnesses,  their  opinions,  and  the  facts  they 
state  as  occurring  at  the  time  of  the  execution  of  the  writing,  are 
to  be  particularly  regarded  by  the  Court.  8  Green's  Ch.  repts.  8. 
The  opinions  of  other  witnesses  as  to  the  capacity  of  the  testator, 
are  the  slightest  kind  of  evidence,  except  so  far  as  those  opinions 
are  based  on  facts  and  occurrences,  detailed  before  the  Court.  9 
Mass.  225.  The  subscribing  witnesses  to  a  will,  may  testify,  as 
to  the  opinion  they  formed  of  the  testator's  mind,  at  the  time  of 
executing  the  will.    3  Mass.  330. 

But  only  the  subscribing  witnesses  can  give  their  opinions 
merely,  without  stating  cause,  as  to  the  state  of  testator's  mind. 
9  Yerger.  329.  Other  witnesses  must  state  only  the  appearance 
of  the  testator  and  particular  facts.  3  Mass.  330;  4  ibid.  593;  8 
ibid.  371. 

Generally,  witnesses  must  state  facts,  and  it  is  the  province  and 
business  of  the  courts,  from  these  facts,  to  decide,  upon  settled 
rules  and  guides,  whether  the  testator  is  competent  or  not.  9 
Mass.  225;  9  Yerg.  329.  And  the  opinions  of  witnesses,  who  are 
physicians,  are  generally  inadmissible  to  prove  the  insanity  of  the 
testator,  unless  they  be  predicated  on  facts  testified  by  either  of 
them  or  by  other  witnesses.  9  Mass.  225.  The  opinions  of  phy- 
sicians must  also  be  accompanied  by  a  statement  of  the  symptoms 
and  circumstances  on  which  they  found  them.    9  Yerg.  329. 


CH.  XV.]  FRAUD — DURESS.  101 

But  having  stated  the  facts,  witnesses  may  then  state  the  opin- 
ion they  have  founded  on  them,  and  the  inferences  they  have 
drawn  from  them.    9  Yerg.  329* 

It  is  laid  down  in  Comstock's  Digest,  that  one  witness  is  not 
sufficient  to  prove  a  man  mad ;  nor  two,  in  case  the  one  testify 
of  the  testator's  madness  at  one  time,  and  the  other  of  his  mad- 
ness at  another  time.  But  both  agreeing  in  time,  if  then  one 
witness  testified  of  one  mad  act,  and  another  of  another  mad  act, 
at  one  and  the  same  time,  these  sufficiently  prove  that  the  testator 
was  then  mad,  tho'  they  do  not  both  testify  of  one  and  the  same 
mad  act.  Comstock's  dig.  23 — citing  Godolph  23, 24,  &  S  winb.  67. 

The  concurring  opinion  of  a  Judge  and  Jury  in  favor  of  the  ca- 
pacity of  the  testator,  would,  even  in  a  doubtful  case,  be  conclu- 
sive, although  opposed  to  the  opinions  of  his  physicians  and  other 
intelligent  witnesses.     1  Bailey's  S.  C.  repts.  92. 

FRAUD ^DURESS OR  UNDUE  INFLUENCE. 

§  2.  In  making  a  good  will,  it  is  necessary  that  the  mind  of 
the  testator  be  free  from  fraud,  fear,  compulsion,  or  other  undue 
influence.  For  when  a  testator  is  moved  by  fear,  circumvented 
by  fraud,  or  overcome  by  immoderate  flattery,  to  make  his  testa- 
ment, the  same  is  void,  or  at  least  voidable  by  exception.  Shep- 
herd's Touch.  405. 

In  objecting  to  the  probate  of  a  will,  the  objector  is  not  confin- 
ed to  enquiring  into  the  testator's  sanity  and  signature,  but  may 
go  into  evidence  of  fraud  in  obtaining  the  signature.  6  Call,  90. 

Where  undue  or  improper  means  are  used  to  procure  the  will 
to  be  made,  to  the  injury  of  parties  who  did  not  complain,  the  will 
ought  not  to  stand,  although  it  may  appear  that  the  testator  al- 
ways intended  to  disinherit  the  parties  contesting  the  will.  6 
Yerg.  reps,  272.    , 

But  if  after  the  fear  has  passed  away  by  removal  of  the  cause, 
or  after  the  compulsion  has  ceased,  and  the  fraud  discovered,  the 
testator  confirm  the  testament,  it  may  in  such  case  be  valid.  Shep. 
Touch.  405. 


•In  an  attempt  to  set  aside  a  will  because  the  testator  was  of  unsound  mind, 
and  unduly  practised  on  evidence  was  admitted  of  the  declarations  of  one  of  the 
erecutors,  who  was  also  a  legatee,  and  one  of  the  parties  to  the  record,  as  to  facts 
which  occurred  at  the  time  of  making  the  will.     1  Pick.  192. 


102  WHAT  PROOF  ADMISSIBLE.  [CH.  XV. 

The  influence  acquired  over  a  testator  by  kind  ofl&ces,  uncon- 
nected wUh  any  fraud  or  contrivance,  can  never  alone  be  a  good 
ground  of  setting  aside  a  will.  Such  influence  is  lawful  and  pro- 
per. 1  Green's  Ch.  repts.  8.  The  influence,  thus  acquired,  tho' 
exerted  over  a  testator  80  years  of  age,  whose  bodily  faculties  are 
impaired,  and  who  without  good  reason,  entertains  feelings  of 
hostility  to  his  family,  cannot  invalidate  the  will.     Ibid. 

A  man  may  by /air  argument  and  persuasion  induce  another, 
to  make  a  will,  even  in  his  own  favor.    3  S.  &  R.  269. 

Arguments  and  persuasions  used  by  testator's  children,  to  in- 
duce a  devise  to  a  brother's  or  sister's  children  who  are  poor,  is 
an  influence  worthily  exerted,  free  from  selfishness,  and  should 
not  condemn  a  will.    1  B.  Mon.  rep.  352. 

A  testator  may  be  aided  by  the  views  of  others  in  coming  to  a 
just  conclusion  as  to  the  manner  of  disposing  of  his  property  by 
will ;  and  the  influence  thereby  exercised,  unless  it  be  an  inter- 
ested one,  cannot  be  deemed  an  undue  influence.  1  B.  Monroe's 
rep.  353. 

A  verbal  departure  from  the  instructions  of  the  testator,  in  one 
of  the  clauses  of  his  will,  which  had  not  been  read  over  to  him 
before  execution,  does  not  necessarily  vitiate  the  whole  will,  al- 
though it  enlarge  the  subject  of  a  devise,  or  create  a  latent  ambi- 
guity in  the  particular  clause.  In  a  question  of  probate  it  is  en- 
titled to  its  due  weight  as  a  circumstance  of  fraud  or  imposition, 
but  it  is  not  conclusive.  1  Bail.  S.  C.  rep.  92.  Where  the  capa- 
city of  the  testator  is  doubtful,  there  must  be  proof  of  instructions 
or  reading  over.    Ibid. 

WHAT  FROOF  OF  FRAUD,  ETC.    ADMISSIBLE. 

§  3.  Parol  evidence  is  admissible  to  prove  that  a  testator  execu- 
ted his  will  under  duress,  but  not  his  declarations  of  that  fact.  2 
John.  rep.  31 .  So,  that  he  executed  under  the  influence  of  frauds 
for  to  exclude  such  evidence  in  such  case,  would  make  a  rule  in- 
tended mainly  to  prevent  injustice,  instrumental  in  producing  it. 
8  Dum.  &  East.  147;  9  Ves.  519;  5  Watts,  200;  1  Bland,  397. 

In  an  issue  of  devisavit  vet  nan  it  was  held,  that  the  declaration 
of  the  supposed  testator,  made  after  the  execution  of  the  will,, 
were  admissible  to  prove  that  the  will  was  obtained  by  frauds 


CH.  XV.]  WHAT  PROOF  ADMISSIBLE.  103 

notwithstanding  the  act  of  1819,  "to  prevent  frauds  in  the  revoca- 
tion of  wills — (Daniel,  Just,  dissenting  from  the  opinion) — unless 
the  declarations  were  made  at  the  time  of  executing  the  will, 
when  they  might  be  admitted  as  part  of  the  rts  gtsta.  3  Dev. 
(N.C.)442. 

Parol  evidence  is  admissible  to  prove  that  the  instrument  offer- 
ed for  probate  never  was,  in  reality,  the  will  of  the  decedent — 4 
Dev.  (N.  C.)  228 — So,  to  rebut  a  resulting  trust, — for  this  is  not  in 
contradiction  of  the  will,  but  against  a  mere  equity  arising  by 
mere  implication  of  law.  14  John.  1;  5  Wend.  580;  4  ib.  443; 
2  John.  Ch.  416;  lOVes.360;  4Har.&  John.551;  7  Mart.  (Lou.) 
R.  243;  3  Mason,  362,  363;  3  Littel,  399;  4  Watts  &  Serg.  149; 
2  Fairf  1;  4  Kent,  (5th  ed.)  305;  2  Story,  Eq.  ju.  sec.  1212. 

§  4.  Where  any  influence  has  been  used  to  procure  a  will,  the 
jury  must  decide  whether  it  was  by  fair  and  reasonable  means, 
or  by  unfair  and  fraudulent  ones.  If  the  former,  they  should  find 
for  the  will ;  if  the  latter,  they  should  find  against  it.  2  Hay- 
wood, 411. 

And  where  there  is  any  evidence  of  fraud  or  imposition  in  ob- 
taining the  will,  the  jurors  may  consider  the  disposition  of  the 
property  actually  made  therein,  to  guide  their  judgment  in  mak- 
ing up  their  verdict.     1  Iredell,  209. 

§  5.  A  will  may  also  be  void  on  account  of  fraud  on  the  part  of 
the  testator — as,  if  A  buys  a  slave  and  the  bill  of  sale  is  made  to 
B,  and  B  devise  the  slave  to  trustees  for  A's  use,  for  life,  with 
remainder  to  C — all  with  the  intent  to  hinder  delay  and  defraud 
the  creditors  of  A — it  is  fraudulent  as  to  said  creditors,  and  C 
takes  nothing  by  the  devise — 4  B.  Mon.  rep.  68 — and  such  slave 
will  be  liable  for  A's  debts.    Ibid. 


104  WHAT  EMBRACED  IN  A  WfLL.  [CH.  XVI. 


CHAPTER  XVI. 

WHAT    EMBRACED    IN    A    WILL  ? 

§  1.  A  will  should  be  construed,  as  at  the  instant  of  the  teta- 
tor's  death,  and  should  not  be  varied  by  subsequent  circumstan- 
ces.   2  Cowen,  333. 

But  in  regard  to  its  effect  on  the  testator's  real  estate,  a  will 
speaks  only  from  the  date  of  its  execution.  8  Cranch  66,  and 
note  to  Perk.  Jarm.  wills,  277. 

§  2.  It  was  the  settled  rule  of  the  English  law,  that  the  testa- 
tor must  be  seized  of  the  land  devised  at  the  time  of  making  his 
will,  and  the  testator  must  also  contiue  seized  thereof  until  the 
time  of  his  death.  1  Ves.  Jr.  254;  8  ib.  295;  10  ib.  597,  605;  4 
Kent,  (5th  ed.)  510,  511;  4  Greenl.  341;  5  John.  Ch.  441;  3  ib. 
307,  310,  312;  1  M'Cord,  ch.  32;  7  Har.  &  John.  320;  4  Rawle, 
323.  In  the  last  case  it  was  decided  that  this  was  the  rule  in 
Pennsylvania,  although  the  testator  declared  in  a  codicil  it  was 
his  wish  and  intention  that  all  the  real  estate  he  should  thereaf- 
ter possess  should  pass  by  the  said  will. 

This  doctrine  extends  not  only  to  legal,  but  to  equitable  inter- 
ests ;  and  after-acquired  lands,  whether  conveyed  to  the  testator 
himself,  or  to  trustees  for  him,  descend,  at  his  death,  to  the  heir 
at  law.     1  Salk.  237;  2  P.  W.  629.* 

§  3.  This  same  rule  prevails  in  Maine — 4  Greenl.  341 — And  in 
Alabama— 2  Ala.  N.S.  712— And  in  Connecticut— 15  Conn.  274 
And  North-Carolina — 3  Iredell,  536. 

In  Virginia,  the  intention  to  pass  after-acquired  land  must  clear- 
ly appear  on  the  face  of  the  will.  8  Cranch,  66;  3  Call,  289;  1 
Wash.  75;  2  Munf.  200.  So  in  Massachusetts— 6  Mass.  149;  3 
Pick.  217;  24  ib.  129;  5  ib.  114.  And  in  New-York— Rev.  stat. 
N. Y.  57.  And  in  Kentucky— 7  J.J.  Marsh.  58.  And  in  Ohio— 
4  Ohio,  115.    See  further,  4  Kent,  (5th  Am.  ed.)  510. 


*Thi8  rule  has  been  changed  in  England  by  statute  of  1838,  so  as  to  pennit  a 
devise  to  operate  on  after-acquired  lands.    Perk.  Jarm.  wills,  43. 


CH.  XVI.]  WHAT  EMBRACED  IN  A  WILL.  106 

In  Mississippi,  the  act  regulating  wills  allows  a  person  to  devise 
all  lands  "  he  or  she  hath,  or  shall  have  at  the  time  of  his  death" 
— (see  page  43,  anit.) — and  it  is  therefore  presumed  that  the 
rule  last  mentioned,  and  not  the  English  rule,  prevails  in  this 
State, 

§  4.  The  presumption,  however,  is,  that  the  testator  meant  to 
embrace,  in  his  will,  only  land  held  by  him  at  the  execution  of 
the  will — 8  Cranch,  66 — except  where  there  is  a  codicil,  con- 
firming and  re-publishing  a  former  will,  in  which  case  land  ac- 
quired between  the  date  of  the  will  and  of  the  codicil,  will  pass. 
3  Mason's  Ct.  Ct.  R.  486;  7  John.  R.  394;  9  ib.  312. 

But,  a  mere  declaration,  by  the  testator  that  he  had  devised  all 
his  lands  and  did  not  wish  to  alter  his  will,  except  to  add  another 
executor,  is  not  such  a  re-publication  as  will  pass  after-acquired 
land ;  and  if  a  testator  alter  his  will,  so  as  to  embrace  after-acquir- 
ed land,  but  the  memorandum  altering  the  will  be  attested  by 
only  two  witnesses,  the  alteration  will  be  void,  and  the  after-ac- 
quired lands  will  not  pass.     9  John.  312. 

§  5.  The  power  of  testamentary  disposition,  extends  to  all  in- 
terest in  real  or  personal  estate,  which,  at  the  decease  of  the  tes- 
tator, would,  if  not  so  disposed  of,  devolve  on  his  general  real  or 
personal  representatives.    Perk.  Jarm.  wills,  38.* 

A  right  of  entry  may  be  devised.  7  Cowen,  238.  So,  land  ad- 
versely held  by  another. — Ih.  Otherwise,  if  by  a  disseizor-^but 
adverse  possession  does  not  amount  to  disseizin. — 2  Wend.  166, 
Disseizin  must  commence  by  wrong.  5  Cowen,  371;  2  Wend,  166. 
A  testator  cannot  devise  land  of  which  he  was  disseized  at  the 
time  of  his  death,  or  had  no  legal  or  equitable  title  to,  at  the  date 
of  the  will.  3  John.  Ch.  C.  307,  312.  Seizin  must  exist  at  the 
time  of  the  testator's  death.  5  ib.  441. 

In  Massachusetts,  by  statute,  lands  of  which  testator  was  dis- 
seized may  pass  by  will ; — it  was  otherwise  before  the  statute. — 
10  Mass.  131;  15  ib.  115.    So  in  Pennsylvania.  4  S.  &  R.  435, 


*Bj  this  rule,  a  joint  tenant,  in  England,  could  not  devise  hid  interest,  because 
there  his  interest  would  survive  to  his  co-tenant.  But  in  Mississippi,  and  other 
Statei,  where  the  jus  aecreacendi  is  abolished,  such  interest  may  be  lievised. 

14 


106  WHAT  EMBRACED  IN  A  WILL.  [CH.  XVl, 

In  Mississippi,  only  such  lands  descend  as  the  owner  died  seiz- 
ed and  possessed  of.  Query — are  such  lands  descendible  ?  In 
Connecticut,  the  maxim,  "seizina  facit  stipitem,"  has  never  been 
adopted,  but  on  the  death  of  the  ancestor  the  descent  is  cast  on  the 
heir,  without  any  reference  to  the  actual  seizin  of  the  ancestor. 

3  Day,  166. 

That  lands  adversely  held,  may  be  devised,  see  3  Marsh.  508, 
509;  3  Bibb,  4;  6  Monroe,  17;  525;  3  J.  J.  Marsh.  214.  So  in  N. 
Hampshire— 6  N.  H.  Rep.  47.  So  in  New-York— 2  Wend.  166; 
7  Cowen,  238.  So  in  Virginia— 2  Leigh,  664;  1  Wash.  75;  2 
Munf.  200;  6  Binn.  416;  1  Peters,  S.  C.  571.  See  also  4  Har.  & 
McHen.  (Md.)  238. 

§  6.  The  settled  rule  of  a  devisable  interest  in  some  parts  of  the 
United  States  is,  that  it  must  be  such  an  interest  in  land,  as  is  de- 
scendible. 4Kent,(5thed.)512,513;  7  Cowen,  238;  5N.Hamp. 
181;  6  ib.  47. 

All  contingent  possible  estates  are  devisable,  for  there  is  an 
interest.  4  Kent,  (5th  ed.)  510.  A  will  may  operate  on  a  contin- 
gent reversionary  interest.  lOPick.306,309;  5ib.528;  21ib.215; 

4  Bro.  S.  C.  337-8;  1  Metcalf,  281 ;  6  Dana,  60— But  not  a  possi- 
bility of  reverter— 2  Hill's  Ch.  (S.C.)  248— A  power  to  sell  lands 
may  be  devised.    1  Hoff.  204. 

§  7.  An  equitable  interest  founded  on  an  agreement  is  devisa- 
ble. 3  John.  Ch.  312;  1  Wend.  325;  4  Ohio,  115.  A  subse- 
quently acquired  legal  estate  will  descend  to  the  heir  as  trustee 
of  the  devisee  of  the  equitable  interest.  Perk.  Jarm.  wills,  43.  So, 
e  converso.    Ibid. 

But  in  order  to  entitle  the  devisee,  the  agreement  to  purchase 
must  be  made  before  the  execution  of  the  will.  3  John.  Ch.  307; 
2  Story  Eq.  790;  1  Sugden  on  Vend.  (6  Am.  ed.)  204. 

But  on  failure  of  such  devise,  the  devisee  is  not  entitled  to  re- 
ceive its  value  out  of  other  parts  of  the  estate.  2  Wend.  166; 
Wms.  Ex'rs.  (2d  Am.  ed.)  1251,  1253. 

§  8.  A  devise  of  a  slave  and  her  increase,  passes  a  child  born, 
after  the  devise  was  written.    2  Bibb.  67. 

The  testator's  will  directed,  "after  the  death  of  his  wife,  his 
negro  girl  Fan  to  be  sold,  and  her  proceeds  divided  among  her 


CH.  XVII.]  CONSTRUCTION  OF  WILLS.  107 

five  eldest  children;  but  if  his  son  William  choose  he  may  keep 
Fan,  by  paying  to  each  of  the  said  children  $100;"  and  further 
directed  "the  residue  of  his  estate  to  be  divided  among  his  five 
younger  children."  Fan  had  one  child  after  the  execution  of  the 
will  and  before  testator's  death,  and  five  after  his  death,  and  be- 
fore the  death  of  the  tenant  for  life — held,  that  the  increase  of 
Fan,  before  the  testator's  death,  fell  into  the  residuum; — that  a 
specific  vested  legacy  in  Fan,  to  take  effect  on  the  death  of  the 
testator's  wife  was  not  given  either  to  William,  or,  on  his  refusal 
to  take  her  at  the  price  fixed,  to  the  elder  children ;  but  that  this 
was  a  mere  direction  to  divide  the  proceeds  of  Fan's  sale  among 
the  elder  children,  with  the  privilege  to  William  to  keep  her  at 
a  fixed  price ;  and  consequently,  that  the  increase  after  the  testa- 
tor's death,  did  not  belong  either  to  William,  if  he  had  elected  to 
take  her,  or  to  the  elder  children,  but  fell  into  the  residuum  and 
was  subject  to  division  among  the  younger  children.  2  Hill's 
Ch.  R.  50. 


CHAPTER  XVII. 

CONSTRUCTION    OF    WILLS. 

§  1.  As  a  general  rule,  wherever  a  testator  refers  to  an  actually 
existing  state  of  things,  his  language  is  referential  to  the  date  of 
the  will,  and  not  to  that  of  his  death,  as  this  is  then  a  prospective 
event.  Perk.  Jarm.  wills,  278— citing  Amb.397;  8  Vin.abr.  328; 
2  Atk.  593;  1  P.  W.  597.  Events  which  have  happened  since 
the  publication  of  the  will,  are  unavailable  to  introduce  an  inten- 
tion into  it.  Nevertheless,  it  is  legal  to  anticipate  in  a  will  many 
events  which  may  happen,  and  to  provide  for  them.  Ram.  wills, 
ch.  14,  cited  in  3  Lomax,  119. 


108  CONSTRUCTION  OF  WILLS.  [CH.  XVII. 

§  2.  The  exposition  of  wills  has  always  been  governed  by  the 
intention  of  the  testator.  This  rule  was  part  of  the  Common  law. 
6  Mod.  110;  1  Salk,  237;  1  P.  Wms.  20. 

Since  the  statute  of  wills,  the  same  rule  has  invariably  prevail- 
ed. The  intention  of  the  testator,  is  the  pole-star  for  the  con- 
struction and  direction  of  devises.  2  Burr.  1112;  1  Atk.  377;  2 
East.  42;  Swinb.  on  wills;  1  Root's  Conn,  repts.  332;  11  ib.  144; 
4  Rand.  213,  181;  6  Dana,  124. 

And  effect  must  be  given  to  a  will,  as  far  as  that  intent  can  be 
ascertained ;  and  judges  cannot  control  that  intent,  by  their  own 
idea  of  its  fitness  or  unfitness,  or  of  the  liberality  or  political  ten- 
dency of  it.  4  Ves.  312,  341,  329,  574;  2  Vern.  327.  For  where 
capacity  of  testator,  formal  execution,  and  volition,  all  appear,  no 
tribunal  can  pronounce  against  a  will,  because  of  its  disapproba- 
tion however  strong,  of  the  dispositions  made  by  the  testator.  1 
Iredell,  209.  And  if  the  Court  is  satisfied  of  the  testator's  inten- 
tion, when  he  made  the  will,  it  must  prevail,  however  different 
the  circumstances  of  his  family  may  have  become  afterwards. — 
10  Yerg.  444 — (But  see  ante  pages  75  &  76.) 

§  3.  Such  intention  must  prevail,  and  the  first  object  is  to  gath- 
er such  intention  from  the  whole  will,  and  carry  it  into  effect,  if 
hgal  and  not  in  opposition  to  public  policy,  or  any  known  rule 
of  law.    4  Rand.  213;  1  Gall.  C.  C.  R.  454;  6  Peters,  68. 

But  every  will  must  be  legal,  and  not  repugnant  to  any  funda- 
mental or  positive  rule  of  law,  nor  against  a  settled  rule  of  inter- 
pretation. 2  Har.  &  Gill.  127;  2  Har.  &  John.  356;  3  Call.  299; 
6  Peters,  68.    See  title  "void  devises,"  post. 

§  4.  The  words  of  the  -will,  free  frojn  conjecture,  are  the  prop- 
er source  from  which  to  collect  the  testator's  intention,  both  at  law 
and  in  equity.  12  Ves.  295;  2  Atk.  373;  1  Eden.  39,  94;  5  Coke, 
686;  2  Vern.  625;  2  M.  &  S.  455,  458;  2  Humph.  50;  6  Peters, 
68.  It  need  not  however  be  express,  but  may  be  inferred  even 
in  opposition  to  the  ordinary  meaning  of  words.  As  where  tes- 
tator devised  to  his  children  his  real  estate,  and  also  a  sum  of 
money  to  one  of  them,  so  that  his  real  and  personal  estate  be 
both  brought  into  the  estimate  and  divided  in  such  manner  as  to 
make  their  portions  equal; — the  sum  of  money  bequeathed  shall 
be  brought  into  the  estimate,  though  the  term  "specifically  given" 


CH.  XVII.]  CONSTRUCTION  OF  WILLS.  109 

gnd  "estimate"  do  not  apply  strictly  to  money — it  being  plain 
that  the  intention  of  the  testator  as  inferrible  from  the  will,  was 
to  make  all  his  children  equal.  4  Rand.  181;  6  Dana,  124, 129. 

§  5.  But  as  a  will  must  be  in  writing,  the  intention  of  the  tes- 
tator must  be  derived  from  the  writing  itself — 3  Burr.  1541;  1 
Eden.  43 — and  words  varying  the  construction  of  the  will  cannot 
be  supplied.  5  T.  R.  323;  6  Munf.  114.  So  no  words,  having 
any  possible  meaning  to  them,  must  be  rejected.  1  Wash.  53.-— 
But  where  words  are  impossible  in  the  place  where  they  occur, 
or  their  ordinary  meaning  is  deserted  and  no  other  furnished  by 
the  will,  they  must  be  disregarded,  as  surplusage.  9  Wheat.  565. 

The  language  of  wills  is  not  of  universal  interpretation,  the 
same  in  all  countries  and  under  all  circumstances ;  but  are  suppo- 
sed to  speak  the  intent  of  the  testator  according  to  the  known 
laws  and  usages  of  the  country  where  he  is  domiciled,  by  an  im- 
plied reference  to  them.  Hence  his  domicil  should  be  known, 
and  whether  he  referred  to  its  laws  or  not.  9  Peters,  483. 

§  6.  The  cardinal  rule  of  interpretation  is  to  take  the  whole  will 
together,  without  regard  to  any  thing  technical,  or  any  particular 
form  of  words.  1  Munf.  537;  1  Dana,  82;  2  Humph.  50.  Courts 
of  justice  cannot  make  a  will  for  a  testator,  by  arbitrary  rules  of 
construction.  2  Call,  87;  1  Munf.  549;  4  Rand.  213, 181;  2  Burr, 
770;  11  Mass.  528. 

But  in  ascertaining  that  intention,  the  construction  which  has 
been  put  on  like  words,  and  the  artificial  rules  by  which  it  is  fixed 
in  the  authorities,  are  to  be  inflexible  guides,  where  they  distinct- 
ly and  pointedly  apply— 1  Mason,  Ct.  Ct.  R.  234;  5  Mass.  500— 
and  the  technical  effect  of  words  in  a  will,  is  presumed  to  be 
meant,  unless  a  contrary  intention  appear.  1  Bos.  &  P.  57;  2  P. 
Wms.  741;  Doug,  341;  5  M.  &  S.  95;  Ram.  wills,  ch.  15. 

And  Courts  must  construe  wills  on  known  principles  and  es- 
tablished rules,  and  not  on  loose  conjectures,  or  by  considering 
what  a  man  may  be  imagined  to  do,  in  the  testator's  circumstan- 
ces. 1  Eden.  43.  Settled  rules  of  interpretation  must  prevail.  2 
Harr.  &  Gill.;  2  Har.  &  John.  356;  3  Call.  299.  And  adjudged 
cases  may  be  argued  from,  if  they  establish  general  rules  of  con- 
struction to  find  out  the  testator's  intention.  1  Burr.  233;  4  Kent's 
Com.  539, 540.     For  if  Courts  were  allowed  an  unlimited  latitude 


110  CONSTRUCTION  OF  WILLS.  [CH.  XVII. 

• 

of  conjecture,  there  would  be  endless  litigation.  Harg.  Tr.  295; 
1  Mason,  224.    See  also  3  Lomax,  120. 

§  7.  The  grammatical  construction  must  prevail,  where  an  in- 
tent to  the  contrary  does  not  plainly  appear.  1  Iredell,  166. — 
Courts  will  supply  words  omitted  by  mistake,  or  absolutely  ne- 
cessary to  eifectuate  the  general  intention  of  the  testator.  2  Burr. 
767;  3  Atk.  315;  7  T.  R.  433;  6  East.  485;  3  Lomax,  122.  But 
where  a  will  is  plain,  the  Court  will  not,  in  order  to  enlarge 
devises,  transpose  words  from  other  clauses  obviously  relating  to 
other  subjects.  2  Munf  453.  But  general  words  in  one  part  of  a 
will,  may  be  limited  and  restrained  by  subsequent  words ;  and 
where  there  is  a  manifest  general  intent,  the  particular  intent 
must  yield  to  it.  Ram.  wills,  ch.  14;  3  Lomax,  119.  So,  the 
secondary  intent  to  the  primary — 9  Peters,  68;  4  Dev.  381.  As 
where  a  clause  of  the  will  directed  the  slaves  of  the  testator  to  be 
emancipated,  and  charged  real  and  personal  estate  with  the  ex- 
pense of  emancipating  them,  and  by  a  subsequent  clause  devised 
all  the  real  estate  and  the  balance  of  his  personal  estate  to  certain 
devisees ; — it  was  held  that  the  devisees  should  take  the  real  es- 
tate, subject  to  the  charge.    4  Humph.  (Tenn.)  R.  208. 

§  8.  It  is  immaterial  in  what  portion  of  the  will  the  testator's 
intention  is  to  be  found.  Courts  will  bring  diflferent  clauses  in 
aid  of  each  other — enlarging  the  sense  of  some,  and  restraining 
that  of  others — and  combine  different  devises,  giving  a  uniform 
construction  to  the  whole  will — let  each  particular  devise  if  pos- 
sible have  its  intended  effect — and  thus  supply  the  defect  of 
counsel  in  the  last  extremity  of  life.  1  Gall.  Ct.  Ct.  R.  454;  3  Bur. 
1662,  1625;  For.  160;  1  B.  «&  And.  137;  6  Peters.  68. 

In  ascertaining  the  intention  of  the  testator,  the  Court  will  as- 
certain— 

1st.  The  terms  of  the  particular  bequests,  considered  relatively 
to  each  other,  conformably  to  their  obvious  meaning,  and  the  es- 
tablished rules  of  law : 

2d.  All  other  parts  of  the  same  will : 

3d.  The  situation  and  circumstances  of  the  testator,  and  the 
subject  matter  of  the  bequest— 2  Dall.  R.  244;  2  Binn.  150,  377; 
4  Rand.  213;  2  Dana,  48,  82;  4  ib.  549;  1  No.  Car.  rep.  446,  450; 
Bald.  Ct.  Ct.  R.  459 — but  only  circumstances  existing  at  the  date 


CH.  XVII.]  CONSTRUCTION  OF  WILLS.  Ill 

of  the  will — 10  Yerg.  444 — and  all  inquiry  must  go  to  show  the 
intention  at  the  date  of  the  will.  2  M' Cord's  Ch.  R.  307;  5  B.  & 
C.69. 

§  9.  A  will  shall  be  so  construed  that  it  shall  rather  stand  than 
fall,  if  such  construction  can  be  reasonably  put  on  it.  6  Dana,  53. 
Yet  if  the  testator  declares  his  intention  to  be,  to  dispose  of  all 
his  estate,  and  it  does  not  appear  with  sufficient  certainty  who 
are  devisees  of  particular  portions,  he  shall  be  considered  intes- 
tate as  to  them.  6  Dana,  313.  And  if  a  will  be  obscure  as  in  5 
Coke,  68 — where  it  did  not  apppear  to  which  of  the  devisees  the 
condition  was  intended  to  apply — or  as  in  3  Atk.  257;  and  1  ib. 
411;  2  ib.  372;  11  East.  441;  and  2  Vern.  621— or  if  it  be  unin- 
telligible, as  in  2  Atk.  239,  and  3Bro.  Ch.  C.  311— where  the 
name  of  the  devisee  was  not  inserted — or  if  the  words,  from  any 
cause,  utterly  fail  to  disclose  any  intention,  collateral  evidence  is 
inadmissible  to  discover  an  intention.    4  M.  &  S.  556. 

§  10.  Introductory  words  often  assist  in  showing  the  intention 
of  a  testator.     3  Lomax,  120. 

Wherever  they  aid  in  showing  the  intent  of  the  testator,  the 
Courts  have  laid  hold  of  them,  as  they  will  of  every  other  circum- 
stance in  a  mill,  which  may  help  to  guide  their  judgment  to  the 
true  and  right  construction  of  it.  Cowp.  306.  In  the  same  case, 
lord  Mansfield  said — "  introductory  words  cannot  vary  the  con- 
struction of  a  devise  so  as  to  enlarge  the  estate  of  a  devisee,  unless 
there  be  words  in  the  devise  itself  sufficient  to  carry  the  degree  of 
interest  contended  for;" — and  in  Cowp.  356,  it  is  laid  down  "that 
introductory  words,  declaring  the  testator's  intention  to  dispose  of 
all  his  real  estate,  is  a  strong  circumstance,  connected  with  other 
words  to  enlarge  a  particular  estate,  or  pass  a  fee,  if  there  be  no 
words  of  limitation,  but  it  will  not  do  alone"  So,  Forest.  157; 
1  Wilson,  133;  3  ib.  143;  Cowp.  299 — show  other  words,  besides 
the  preamble,  clearly  manifesting  the  intention  of  the  testator. 
See  Cowp.  352;  Doug.  732;  11  East.  220;  Cowp.  661,  657;  3 
Burr.  1618,  1625;  5  T.  R.  13;  8  ib.  497.  64;  5  East.  51;  15  ib. 
505;  11  ib.  223.  See  also,  1  Munf  549;  3  ib.  75;  3  Call.  265, 
280,  307;  1  Wash.  96;  1  Call.  110, 127;  3  Rand.  280;  2  Munf. 
263;  10  Wheat.  204;  14  S.  &  R.  84;  4  Har.  &  John.  209;  1  Gall. 
454;  accordant.    Introductory  words  will  not  per  se,  enlarge  an 


112  CONSTRUCTION  OF  WILLS.  [cH.  XVII. 

estate  into  a  fee  where  the  words  conld  not  ordinarily  import  it. 
10  Wheat.  204— As,  the  word  "tenement."  9  Wheat.  565.  Nor 
a  declaration  by  preamble  that  the  testator  wishes  to  dispose  of  all 
his  estate.  1  Gallis.  454 — or  the  words  "  temporal  goods" — 3 
Rand.  280.  If  by  all  the  words  of  the  will,  it  appear  affirma- 
tively that  the  testator  intended  to  devise  a  fee,  a  fee  will  pass. 
12  Pick.  27;  18  ib.  537,  539. 

§  11.  The  context  of  a  will  is  a  further  means  of  ascertaining 
the  intention  of  the  testator.  Dyer,  333;  9  Coke,  128;  Cro.  J.415; 
3  Mod.  123;  I  Vent.  230. 

It  may  convert  an  estate  for  life  into  an  estate  tail.  1  P.  Wms. 
605;  3  T.  R.  448,  note  (a)— I  Vent.  231;  I  Atk.  432;  I  Burr.  268; 
5T.R.335;  2Ves.  611. 

Or  it  may  explain  a  limitation  in  fee,  to  be  a  fee  tail — 4  T.  R. 
605 — as,  by  limitation  over  on  the  failure  of  the  heirs  of  the  body 
of  the  first  devisee.  Cowp.  410;  7  T.  R.  276;  8  ib.  211;  6  East. 
336;  9ib.382;  12ib.253;  4M.&S.61;  3 Mod.  123;  IP. Wms. 
23;  2  Eq.  Cab.  205;  1  Eden.  142;  Amb.  363;  3  T.  R. 488,  note 
(a)— 6  T.  485. 

Or,  it  may  explain  a  limitation  in  fee  into  an  executory  devise. 
3  T.  R.  146;  10  Mod.  419;  3  Bro.  Ch.  C.  147.  For  examples  of 
executory  devises  limited  on  the  contingency  of  the  devisees  dy- 
ing in  his  minority,  see  Palm.  136;  1  Wils.  105;  3  Atk.  198;  3 
ib.  390.  For  such  as  are  limited  on  contingency  of  devisee's  ^ 
death,  without  leaving  issue  at  the  time  of  his  death,  see  Eq.  C. 
ab.  306,  pi.  7;  3  T.  43;  7  T.  T.  589;  2  Bos.  &  P.  324;  IB.  &  A, 
713;  3  ib.  546.    (See  also  Statute  of  Mississippi.) 

Or,  it  may  explain  an  estate  for  life,  into  a  fee.  See  next  sec- 
tion. 

§  12.  As  to  the  quantity  of  the  estate  devised,  tlje  intention  of 
the  testator,  if  sufficiently  declared,  must  be  carried  into  effect, 
however  defective  the  language  may  be.     3  Loraax,  177. 

Even  according  to  the  doctrines  of  the  English  law,  the  word 
"heirs,"  need  not  be  used  in  a  will  to  pass  a  fee;  but  any  words, 
which  sufficiently  show  the  intention  of  the  devisor  to  give  the 
whole  interest,  will  have  the  same  effect.  1  P.  Wms.  77.  But 
such  intention  must  be  plain  and  not  conjectural,  and  necessary 
to  give  effect  to  the  words  of  the  will— 10  Wheat.  204;  2  Prest. 


CH.  XVII.]  CONSTRUCTION  OF  WILLS.  113 

Esta.  69— Otherwise,  the  general  rule  will  prevail,  which  is,  that 
where  there  is  a  devise,  without  words  of  limitation,  the  devisee 
will  only  take  an  estate  for  life.  1  Gall.  454;  3  Cranch.  97;  3 
Wash.  C.  C.  R.  369;  4  ib.  194;  9  Wheat.  565. 

And  the  rule  is  the  same,  notwithstanding  the  testator  may 
have  commenced  his  will  with  a  declaration  of  his  intention  to 
dispose  of  his  whole  estate — Cowp.  657;  Doug.  731;  8  Durn.  & 
E.  64;  ib.  497;  1  Gall.  454 — unless  coupled  with  other  expres- 
sions confirming  such  intention,  as,  "  I  devise  to  A  freely  to  pos- 
sess and  enjoy."     3  Wash.  C.  C.  R.  369. 

And  although  the  testator  may  have  given  a  nominal  legacy 
to  his  heir— 2  Bl.  1045;  Doug.  730;  3  Mau.  &  Sel.  518— or,  may 
have  declared  an  intention  wholly  to  disinherit  him — or  the  will 
may  contain  an  antecedent  devise  to  the  heir  for  life  of  the  tes- 
tator's property  which  is  the  subject  of  dispute — 1  B.  C.  C.  519; 
9  East.  267 — or,  the  devise  may  be  to  a  class,  as  testator's  child- 
ren embracing  the  heir — Cro.  El.  330 — or,  though,  in  another 
part  of  the  will,  or  the  immediate  context,  there  be  a  devise  ex- 
pressly for  life,  affording  the  argument  that  the  testator  meant 
something  more,  or  at  least  different,  by  the  indefinite  devise — 
7  Durn.  &E.  633;  1B.C.C.519;  2  New.  Rep.  343;  5  Adolph. 
&  Ell.  317 — though  any,  or  all  of  these  circumstances  concur  in 
the  same  will,  it  is  indisputable  that  such  a  devise  will  confer 
only  an  estate  for  life — 2  Perk.  Jarm.  wills,  171 — and  if  there  be  a 
devise  to  one  generally  of  freehold  and  personal  estates  without 
any  words  of  limitation,  he  will  take  only  an  estate  for  life  in  the 
fireehold,  but  the  personal  property  absolutely — 1  Harr.  &  Gill. 
Ill;  8  Mass.  3;  4  Monroe,  257;  1  Scam. 276;  9  John.  222;  14 ib. 
198;  10  ib.  148 — unless,  in  respect  to  the  freehold  there  be  a 
manifest  intention  to  give  a  fee — ^24  Pick.  129, 133;  11  Mass. 528, 
531;  4  Kent.  (5th  ed.)  5, 6, 7;  8  John.  141;  9  ib.  222;  14  ib.  198 
17  ib.  221 ;  6  Binn.  94;  14  Serg.  &  R.  84;  10  Wheat.  204;  6  H^rr 
&  John.  209,  210 — But  if  such  intention  be  manifest,  a  fee  sim 
pie  will  pass  without  words  of  limitation  or  perpetuity. — 1  Munf. 
549;  3  Desaus.  249;  3  ib.  168-80;  5  Call.  463;  2  Desaus.  290; 
21Maine,340;  18Pick.539;  12Wend.602;  12Pick.27;  4Kent, 
(5th  ed.)  5, 6, 7;  ib.  536,  et  seq.;  6  Harr.  &  John.  205;  1  McMul. 
346;  10  Mass.  303;  State  Eq.  R.  72;  2  M'Cord,  171. 
15 


114  CONSTRUCTION  OP  WILLS.  [CH.  XVII. 

§  13.  If  an  estate  be  given  generally,  with  a  power  of  disposi- 
tion, it  carries  a  fee,  unless  the  testator  gives  to  the  first  taker  an 
estate  for  life  only,  and  annexed  to  it  a  power  of  disposition  of  the 
reversion.  4  Kent,  (5th  ed.)  635,  536;  2  John.  391;  12  ib.  389; 
16  ib.  587,  588;  1  Serg.  &  R.  16;  8  Cowen,  277. 

§  14.  A  fee  will  also  pass  where  the  purposes  of  the  devise 
cannot  certainly  be  accomplished,  unless  the  devise  be  construed 
to  pass  a  fee — 3  Lomax,  178;  2  Prest.  Est.  72,  207 — As,  where 
the  devisee  is  directed  to  pay  the  testator's  debts ;  for  in  such 
case,  if  the  devisee  only  took  an  estate  for  life  he  might  be  dam- 
nified—2  Perk.  Jarm.  wills,  171;  Willes,  440;  8  Durnf.  &  East.  1; 
4  East.  496 — and  neither  the  improbability  of  such  loss,  arising 
out  of  the  relative  amount  of  the  debt  and  value  of  the  property 
devised,  nor  the  contingent  nature  of  the  charge  will  alter  this 
rule*  im.— and  see  2  Atk.  341;  8  Durnf. &  East. 497;  3  Russ. 
350;  3  Barn.  &  Adolph.  753.  And  it  is  immaterial  whether  the 
devisee  is  directed  to  pay  simply  or  to  pay  out  of  the  land. — 5 
East.  87.t  So,  though  the  devisee  be  appointed  executor.  6 
Madd.  9;  3  Barn.  &  Adolph.  753. 

§  15.  But  the  foregoing  rule  is  confined  to  indefinite  devises; 
it  does  not  apply  where  an  estate  for  life  is  expressly  given,  or 
an  estate  tail  express  or  implied ;  nor  where  the  devise  is  after 
payment  of  debts,  or  subject  to  same,  (without  saying  by  whom 
the  charge  shall  be  borne.)  5  Durnf  &  East.  558;  1  Bos.  &  Pull. 
247;  Prec.  ch.  67 — see  also  note  t  infra. 

§  16.  A  fee  will  also  pass,  where  the  devise  is  succeeded  by  a 
gift  over,  in  the  event  of  the  devisee  dying  in  his  minority ;  for 
the  necessary  presumption  is,  that  by  limiting  the  second  gift 
to  the  contingency  of  the  first  devisee's  death  in  his  minority,  the 
donor  intended  the  first  to  take  the/ee  on  arriving  at  full  age — 9 
East,  600;  2  Mau.  &  Selw.  608;  6  Price,  179— overruling  1  Com. 
358.    The  rule  is  the  same  though  the  prior  devise  be  to  the 


*A  contingent  charge  on  an  estato  devised  will  not  carry  the  fee.    8  John.  141. 

t  When  the  charge  is  on  the  estate,  without  words  of  limitation,  the  devisee  will 
take  only  a  life  estate ;  but  if  on  the  person  of  the  devisee  in  respect  to  the  estate 
devised,  he  takes  a  fee.  lOJohn.  I4U;  I8ib.  31;  6ib.  185;  18  Wend.  200;  7 
Paige,  421;  15  Maine,  436;  5  Harr.  &  John.  177;  6ib.208;  9  Mass.  161 ;  10 
Wheat.  231 ;  3  Mason,  309,  312;  11  Mass.  528;  4  Pick,  198,  203;  24  ib.  129;  2 
M'Cord's  Cb.  177;  1  Cramp.  &  Mees.  39. 


CH.  XVII.]  CONSTRUCTION  OP  WILLS.  115 

children  of  a  devisee  for  life — 9  East.  600 — and  though  another 
contingency  be  coupled  with  that  of  death  under  a  prescribed 
age.     10  East.  460;  Willes,  138;  1  Kee.  240. 

But  the  doctrine  cannot  apply  in  any  case  where  the  second 
devise  rests  on  any  contingency  not  coupled  with  the  death  of 
the  first  devisee,  but  on  a  distinct  collateral  event.    Cowp.  235. 

And  where  a  devise  without  words  of  limitation,  is  to  be  sub- 
stituted for  another  and  previous  devise  in  fee,  it  cannot  be  en- 
larged by  this  rule  into  a  fee.  Skin.  339;  ib.  285;  Pre.  Ch.  Ch.  67; 
2  Wils.  80.* 

As  to  the  devise  of  lands  in  trust,  and  the  application  of  this 
rule  thereto,  see  1  Kee.  240;  9  Mod.  92;  2  P.  Wms.  194;  2  Eq. 
Ca.  abr.  329;  Cruise,  C.  Dig.  641 ;  3  Atk. 316;  2  Perk.  Jarm.  wills, 
178. 

§  17.  A  devise  of  wild  lands  will  pass  a  fee,  without  words  of 
inheritance ;  and  the  devisee  may  shew  the  fact  that  the  lands 
are  wild  by  parol  evidence.  3  Lomax,  194;  10  Mass.  R.  307;  ib. 
305;  1  Yeates,  250,  380. 

§  18.  No  technical  words  are  necessary  to  .devise  a  fee.  12 
John.  389.  "  I  devise  my  lands,"  are  Avords  sufficient  to  pass  a 
fee.  8  Ohio,  365.  So,  the  words  "  I  will  and  bequeath  to  my 
son  R.  one  half  of  my  plantation,  whereon  I  now  live."  2  Mc- 
Cord's  Ch.  177.  A  devise  "of  all  one's  right"  carries  a  fee.  2 
Caine,  345. 

A  devise  will  pass  a  fee,  if  the  will  uses  the  words,  "  to  A.  in 
fee  simple" — And.  51; — or,  "to  A.  forever" — Co.  Litt.  96;  8  Vin. 
ab.206;  lBulst.219;  2  Ld.  Raymond,  1152;  1  B.  C.  C.  148— 
(but  not  if  to  a  person  and  his  assigns,  simply — C.  Litt.  96) — or 
even  "to  him  and  his,"  simply — South.  36 — or  "to  A.  to  give  and 
sell;"  8  Vin. ab.206— or  "to  A.  to  give  away  at  his  death  to  whom 
he  pleases;" — or,  "to  be  at  the  discretion  of  a  person."  See  2 
Perk.  Jarm.  wills,  180. 

It  has  been  disputed  whether  a  devise  of  lands  to  a  person 
"  by  him  freely  to  be  possessed  and  enjoyed,"  will  pass  a  fee.  2 
Perk.  Jarm.  wills,  179,  and  other  authorities  there  cited.    In  the 


•Wjhere  landa  are  devised  in  fee  with  a  limitation  over,  to  which  no  words  of 
inheritance  ire  annexed,  the  ulterior  devise  will,  notwithstandinfir,  be  a  fee.  11 
John.  337. 


116  CONSTRUCTION  OF  WILLS.  [CH.  XVII. 

United  States,  it  has  been  decided  that  these  words  are  sufficient, 
when  coupled  with  the  declaration  of  a  general  intention  of  the 
testator  to  dispose  of  all  his  estate.  3  Wash.  Ct.  Ct.  R.  369.  See 
also  9  Wheat.  565;  10  ib.  204;  4  Wash.  Ct.  Ct.  R.  194. 

§  19.  The  Avord  "estate"  passes  a  fee,  because  it  embraces  not 
only  the  corpus  of  the  property,  but  also  the  testator's  interest  in 
it.  2  Perk.  Jarm.  wills,  181;  6  John.  185;  13ib.537;  12ib.389 
llib.365;  21Maine,340;  18Pick.539;  4Day,368;  17Mass.68 
2Desaus.573,422;  1  Bro.C.C.  437,  notes;  2ib.539;  9  Sim.  447 

3  Yeates,  187;  6  Binn.  97;  3  Desaus.  80;  4  Kent,  (5th  ed.)  535. 
The  word  "  property"  is  also  sufficient ;  so,  "  residue  of  testator's 
reaZ  effects."  16  East.  221;  18  Ves.  194;  1  Jac.  &  Walk.  189— 
(See  also,  2  Perk.  Jarm.  wills,  178  to  190,  and  appendix  to  this 
work.) 

§  20.  In  many  of  the  States,  the  subtilties  and  embarrassments 
growing  out  of  the  preceding  rules,  in  relation  to  the  interest  con- 
veyed by  an  indefinite  devise,  have  been  swept  away  by  statuto- 
ry enactments. 

In  Mississippi,  J;he  statute  provides,  that  "every  estate  in  lands, 
which  shall  hereafter  be  granted,  conveyed,  or  devised  to  any 
person  or  persons — although  other  words,  heretofore  necessary  to 
transfer  an  estate  of  inheritance  be  not  added — shall  be  deemed 
a  fee-simple,  if  a  less  estate  be  not  limited  by  express  words,  or 
do  not  appear  to  have  been  granted,  conveyed  or  devised  by  con- 
struction or  operation  of  law.     How.  &  H.  sec.  23,  p.  348. 

In  Virginia,  Kentucky,  Missouri,  Alabama  and  New-York,  the 
word  "  heirs,"  or  other  words  of  inheritance,  are  no  longer  neces- 
sary to  create  or  convey  an  estate  in  fee ;  and  every  grant  or  de- 
vise of  real  estate,  subsequent  to  the  statute,  passes  all  the  inter- 
est of  the  grantor  or  testator,  unless  the  intent  to  pass  a  less  estate 
or  interest,  appears  in  express  terms,  or  by  necessary  implication. 

4  Kent,  (5th  ed.)  7,  8—8  Paige,  325. 

In  New-Jersey,  Maryland,  North-Carolina,  South-Carolina  and 
Tennessee,  it  has  been  declared  by  statute  that  a  devise  of  land 
shall  convey  a  fee  simple,  unless  it  appear,  by  express  words,  or 
manifest  intent,  that  a  less  estate  was  intended.  4  Kent,  (5  ed.) 
8,  537,  538,  and  notes— 1  Harr,&  Gill.  138,  note. 

And  now  in  England,  by  act  of  1  Vict.  ch.  26,  it  is  enacted. 


CH.  XVll.]  RULES  OF  CONSTRUCTION.  117 

"that  where  any  real  estate  shall  be  devised  to  any  person,  with- 
out any  words  of  limitation,  such  devise  shall  be  construed  to  pass 
the  fee  simple,  or  other  the  whole  estate  or  interest  which  the 
testator  had  power  to  dispose  of  by  will  in  such  real  estate,  un- 
less a  contrary  intention  shall  appear  by  the  will.  2  Perk.  Jarm. 
wills,  193. 

§  21.  The  effect  of  these  enactments  is  merely  to  reverse  the 
rule.  Under  the  old  law,  an  indefinite  devise  without  words  of 
limitation  passed  only  a  life  estate.  Now,  the  same  devise  will 
confer  a  fee,  unless  a  contrary  intent  be  manifest.  The  burden 
of  proof  is,  in  such  case,  shifted  upon  those  claiming  the  more 
restricted  interpretation ;  and  as  the  restricted  construction  rarely 
accords  with  the  actual  intention  of  the  testator,  it  will  probably 
not  often  occur,  that  the  Courts  will  be  called  on  to  apply  the 
proviso,  which  saves  the  effect  of  a  restrictive  context ;  so  that 
there  seems  no  reason  that  the  newly  enacted  rule  will  be  so  pro- 
lific of  qualifications  and  exceptions  as  that  doctrine  which  it  has 
superseded.    2  Perk.  Jarm.  wills,  194. 

RULES    OF    CONSTRUCTION. 

§  22.  In  connection  with  what  has  been  said,  respecting  the 
construction  of  wills,  will  now  be  presented  to  the  reader  a  sum- 
mary of  the  several  rules  of  construction,  as  compiled  in  the  ad- 
mirable treatise  of  Perk.  Jarm.  on  Wills,  vol.  2,  p.  740. 

I.  A  will  of  real  estate,  wheresoever  made,  and  in  whatever 
language  written,  is  construed  according  to  the  law  of  England 
(or  other  State,)  in  which  the  property  is  situate.  Pre.  Ch.  577. 
Bat  a  will  of  personalty  is  governed  by  the  lex  domicilii.  (1  Jarm. 
wills,  2.) 

II.  Technical  words  are  not  necessary  to  give  effect  to  any 
species  of  disposition  in  a  will.  3  Durn.  &  E.  86;  11  East.  246; 
16  id.  222. 

III.  The  construction  of  a  will  is  the  same  at  la^w  and  in  equity 
— 3  P.  W.  259;  2  Ves.  74 — the  jurisdiction  of  each  being  gover- 
ned by  the  nature  of  the  subject.  1  Ves.  16;  2  ib.417;  4  Ves.  329. 
Though  the  consequences  taay  differ,  as  in  the  instance  of  a  con- 
tingent remainder,  which  is  destructible  in  the  one  case  and  not 
in  the  other. 


118  RULES  OF  CONSTRUCTION.  [CH.  XVII. 

IV.  A  will  speaks,  for  some  purpose,  from  the  period  of  execu- 
tion, and  for  others  from  the  death  of  the  testator ;  but  never 
operates  till  the  latter  period.    I  Perk.  Jarm.  wills,  277,  &  ante. 

V.  The  heir  is  not  to  be  disinherited  without  an  express  devise, 
or  necessary  implication.  Br.  Devise,  52;  Dyer,  330;  2  Strange, 
969;  Hardw.  142;  I  Wils.  105;  WiUes,  303;  2  D.  &  E.  209;  2 
Mau.  &  S.  448.  Such  implication  importing  not  natural  neces- 
sity, but  so  strong  a  probability,  that  an  intention  to  the  contrary 
cannot  be  supposed.  1  Ves.  &  B.  466;  5  Durn.  &  E.  558;  7  East. 
97;  I  New.  Rep.  118;  18  Ves.  40. 

VI.  Merely  negative  words  are  not  sufficient  to  exclude  the  ti- 
tle of  the  heir,  or  next  of  kin.  There  must  be  an  actual  gift  to 
some  other  definite  object.  4  Beav.  318;  I  Perk.  Jarm.  wills,  294, 
ante. 

VII.  All  parts  of  a  will  are  to  be  construed  in  relation  to  each 
other,  and  so  as,  if  possible,  to  form  one  consistent  whole.  But, 
where  several  parts  are  absolutely  irreconcileable,  the  latter  must 
prevail.  9  Mod.  154;  2  Bl.  979;  I  Durn.  &  E.  630;  6  Ves.  100; 
16  Ves.  314;  3  Mau.  &  S.  158;  Swanst.  28;  2  Atk.  372;  6  Durn. 
&  E.  314;  2  Taunt.  109;  18  Ves.  421;  6  Moore,  214;  I  Perk. 
Jarm.  wills,  411,  note,  and  ante. 

VIII.  Extrinsic  evidence  is  not  admissible  to  alter,  detract  from, 
or  add  to,  the  terms  of  a  will — 16  Ves.  486;  5  Rep.  68;  7  Durn. 

6  E.  138 — though,  it  may  be  used  to  rebut  a  resulting  trust,  at- 
taching to  a  legal  title,  created  by  it.  I  Perk.  Jarm.  wills.  357;  & 
ante. — or,  to  remove  a  latent  ambiguity.  Ibid. — and  see  post,  ev- 
idence. 

IX.  Nor,  to  vary  the  meaning  of  words — 4  Taunt.  176;  4  Dow. 
65;  3  Mau.  &  S.  171— But  see  2  P.  W.  135— And  therefore,  in 
order  to  attach  a  strained  and  extraordinary  sense  to  a  particular 
word,  an  instrument  executed  by  the  testator,  in  which  the  same 
word  occurs  in  that  sense,  is  not  admissible.  11  East.  441. — But, 

X.  The  Courts  will  look  at  the  circumstances  under  which  the 
devisor  makes  his  will ;  as,  the  state  of  his  property — I  Mer.  646; 

7  Taunt.  105;  I  Barn.  &  Aid.  550;  3  Barn.&  Cress.  870;  I B.  C.C. 
472— of  his  family— 4  Burr. 2165;  4  B. C.C. 441;  3  Bam.  &  Aid. 
657;  3  Dow.  72;  3  Bam.  &  Aid.  632;  2  Moore,  302— and  the 
like— I  Black,  60;  I  Mer.  384.  . 


CH.  XVII.]  RULES  OF  CONSTRUCTION.  119 

XI.  In  general,  implication,  is  admissible  only  in  the  absence 
of,  and  not  to  control  an  express  disposition.  8  Rep.  94;  2  Vem. 
60;  1P.W.54. 

XII.  An  express  and  positive  devise,  cannot  be  controlled  by 
the  reason  assigned — 16  Ves.  36 — or  by  subsequent  ambiguous 
words — 8  Bligh.  N.  S.  88 — or  by  inference  and  argument  from 
other  parts  of  the  will— 1  Ves.  Jr.  268;  8  Ves.  42;  Cowp.  99.— 
And  accordingly,  such  a  devise  is  not  affected  by  a  subsequent 
inaccurate  recital  of,  or  reference  to  its  contents — Moore,  13,  pi. 
50;  I  And.  8,  Cowp.  83 — though  recourse  may  be  had  to  such 
reference,  to  assist  the  construction,  in  case  of  ambiguity  or 
doubt. 

XIII.  The  inconvenience  or  absurdity  of  a  devise,  is  no  ground 
for  varying  the  construction,  where  the  terms  of  it  are  unambig- 
uous.   I  Mer.  417;  2  Sim.  &  Stew.  295. 

Nor,  is  the  fact  that  the  testator  did  not  see  all  the  consequen- 
ces of  his  disposition,  a  reason  for  varying  it.  3  Mau.  &  S.  37; 
I  Mer.  358.  But  where  the  intention  is  obscured  by  conflicting 
intentions,  it  is  to  be  sought  rather  in  a  rational  and  consistent, 
than  an  irrational  and  inconsistent  purpose.  4  Madd.  67;  3  B. 
C.C.C.401. 

XIV.  The  rules  of  construction  cannot  be  strained  to  bring  a 
devise  within  the  rules  of  law — I.  Cox,  324;  2  Mer,  389;  I  Jac.  & 
Walk.  31.    But  see  2  Russ.  &  M.  306;  2  Kee.  756;  2  Beav.  352. 

But,  it  seems,  that  where  the  will  admits  of  two  constructions, 
that  is  to  be  preferred,  which  will  render  it  valid.  And  there- 
fore, the  Court  in  one  instance  adhered  to  the  literal  language  of 
the  testator,  though  it  was  highly  probable,  that  he  had  written  a 
word,  by  mistake,  for  one  which  would  have  rendered  the  devise 
void.    3  Burr.  1626;  3  B.  P.  C.  Tomlin  Ed.  209. 

XV.  Favor,  or  disfavor,  to  the  object,  ought  not  to  influence  the 
construction.    4  Ves.  574.    But  see  2  Ves.  &  Be.  269. 

XVI.  AVords,  in  general,  are  to  be  taken  in  their  ordinary  and 
grammatical  sense,  unless,  a  clear  intention  to  use  them  in  an- 
other, can  be  collected, — and,  that  other  can  be  ascertained.  18 
Ves.  466.  And  they  are,  in  all  cases,  to  receive  a  construction, 
which  will  give  every  expression  some  eflfect,  rather  than  one 


120  RULES  OF  CONSTRUCTION.  [CH.  XVIL 

which  will  render  the  expression  inoperative.  3  Ves.  450;  7  ib. 
455;  7  East.  272;  2  Barn.  &  Aid.  441.  And,  of  two  modes  of 
construction,  that  is  to  be  preferred  which  will  prevent  total  in- 
testacy.    Cas.  Temp.  Talb.  161;  3  Ves.  204;  2  Mer.  386. 

XVIL  Where  a  testator  uses  technical  words,  he  is  presumed 
to  employ  them  in  their  legal  sense.  Doug.  340;  6  Durn.  &  E. 
352;  4  Ves.  329;  5  Ves.  401. 

XVIII.  Words,  occurring  more  than  once,  in  a  will,  shall  be 
presumed  to  be  used,  always,  in  the  same  sense — 2  Ch.  C.  169 — 
unless,  a  contrary  intention  appear  by  the  context — Doug.  269 — 
Or,  unless  the  words  be  applied  to  a  different  subject.  I  P.  Wm. 
663;  2  Ves.  Sen'r.  61 6;  5  Mau.  &  S.  126;  I  Ves.  &  Be.  260.  But 
see  14  Ves,  488.  And  on  the  same  psinciple,  where  a  testator 
uses  an  additional  word  or  phrase,  he  must  be  presumed  to  have 
an  additional  meaning,  4  B.  C.  C.  15;  13  Ves.  39;  7  Taunt.  86. 
But  see  Ambler,  22;  6  Ves.  300;  10  Ves.  166;  13  East.  559;  13 
Ves.  476;  19  Ves.  545;  I  Mer.  120;  3  Mer.  316— where  the  argu- 
ment that  the  testator,  notwithstanding  some  variation  of  expres- 
sion, had  the  same  intention,  in  several  instances,  prevailed. 

XIX.  Words  and  limitations  may  be  transposed — 2  Ch.  C.  10; 
Hob.  75;  2  Ves.  34;  Amb.  374;  8  East.  149;  15  East.  309;  I  Be. 
&  A.  137; — but  see  2  Ves.  sen'r.  248; — or  supplied — 7  Durn.  & 
E.437;  6  East. 486;  3  Dowl.&  Ryl.398;  2  Bl.  1014;— or  rejected, 
— 2Ves.276;  3 Durn.&E.87, n.;  3ib.484;  4Ves.51;  5Ves.243; 
6  Ves.  129;  12  East.  515;  9  Ves.  566 — where  warranted  by  the  im- 
mediate context,  or  the  general  scheme  of  the  will ;  but  not  merely 
on  a  conjectural  hypothesis  of  the  testator's  intention,  however 
reasonable,  in  opposition  to  the  plain  and  obvious  sense  of  the  lan- 
guage of  the  instrument.  18Ves.368;  19  id.  652;  2Mer.25. 

XX.  Words,  which,  it  is  obvious,  are  mis-written,  (as  dying 
toith  issue,  for  dying  loithout  issue,)  may  be  corrected.  8  Mod.  59; 
5  Barn  &  Adolph.  621;  3  Adol.  &  Ellis,  340. 

XXI.  The  construction  is  not  to  be  varied  by  events  subsequent 
to  the  execution.  3P.W.259;  11  East. 558,  n.;  ICox,324;  1  Ves. 
475.  But  the  Court,  in  determining  the  meaning  of  particular  ex- 
pressions, will  look  to  possible  circumstances,  in  which  they  migJU 
have  been  called  on  to  affix  a  signification  to  them.   1 1  Ves.  4=^7. 


CH.  XVIII.]  ESTATES   TAIL.  »  121 

XXII.  Several  independent  devises,  not  grammatically  con- 
nected, or  united  by  the  expression  of  a  common  purpose,  must 
be  construed  separately  and  without  relation  to  each  other ;  al- 
though, it  may  be  conjectured,  from  similarity  of  relationship,  or 
other  such  circumstances,  that  the  testator  had  the  same  intention 
in  regard  to  both.  Doug.  759;  8  Durn.  &  E.  64;  1  N.  R.  335; 
9  East.  267;  11  id.  220;  14Ves.304;  4Mau.&S.  58;  IPri.353; 
4  Barn.  &  Cress.  667.  There  must  be  an  apparent  design  to  con- 
nect them.  10  East.  503.  This,  and  the  former  class  of  cases 
chiefly  relate  to  a  question  of  frequent  occurrence — (i.  e.)  wheth- 
er words  of  limitation,  preceded  by  several  devises,  relate  to  more 
than  one  of  those  devises  ? 

XXIII.  Where  a  testator's  intention  cannot  operate  to  its  full 
extent,  it  shall  take  effect  as  far  as  possible.  Finch.  139;  3  P.  W. 
250;  4  Ves.  325;  13  Ves.  486. 

XXIV.  A  testator  is  rather  to  be  presumed  to  calculate  on  the 
dispositions  in  his  will  taking  eifect,  than  the  contrary.  And  ac- 
cordingly, a  provision  for  the  death  of  devisees,  will  not  be  con- 
sidered as  intended  to  provide  exclusively  for  lapse,  if  it  admits 
of  any  other  construction.  2  Atk.  375;  4  Ves.  418,  554;  I  Ves. 
&Be.  422;  I  Pri.  264;  I  Swanst.  161;  2  Ves.  501;  I  McLeland, 
168;  2  Irish  Eq.  161. 


CHAPTER   XVIII. 


ESTATES    TAIL. 


§  1.  Estates  tail,  unknown  to  the  common  law,  but  growing 
out  of  the  statute  de  bonis  conditionalibus,  and  upheld  by  the 
courts  of  England  in  order  to  provide  for  the  issue  of  the  first  ta- 
ker, have  been  long  abolished  in  the  United  States,  by  statutes 
which  operate  a  conversion  of  such  estate,  into  an  estate  in  fee 
simple  in  the  first  taker.  And  although  in  consequence  of  these 
statutes,  estates  tail  are  now  seldom  or  never  created  by  will,  yet 
16 


139  ESTATES   TAIL.  [CH.  XVIII. 

as  one  might  arise  by  implication,  which  would  be  subject  to  the 
operation  of  the  statute,  it  is  necessary  to  understand  the  nature 
of  such  estate,  and  the  means  by  which  they  may  be  created. 

§  2.  In  Mississippi,  the  statute  provides,  that  "  in  all  cases, 
where  a  devise  expressly  or  by  implication,  creates  an  estate  in 
fee  tail,  the  same  shall  be  an  estate  in  fee  simple,  and  shall  be  dis- 
charged of  the  condition,  (by  the  common  law,  annexed  thereto, 
restraining  alienation  before  the  donee  shall  have  issue,)  so  that, 
the  donor,  or  person  in  whom  the  conditional  fee  is  vested,  or 
shall  vest,  shall  have  the  same  power  over  the  said  estate,  as  if 
the  same  were  a  pure  and  absolute  fee,  'provided,  that  any  person 
may  make  a  conveyance  or  devise  of  lands  to  a  succession  of  do- 
nees then  living,  and  the  heir  or  heirs  of  the  body  of  the  remain- 
der-man— and  in  default  thereof  to  the  right  heirs  of  the  donor 
in  fee  simple."    (H.  &  H.  ch.  34,  sec.  24,  p.  348.) 

In  New-Yorlc,  estates  tail  were  abolished  in  1782 — in  New- 
Jersey,  1820— in  Virginia,  1776— N.  Carolina,  1784— in  Kentuc- 
ky, 1796.  They  have  also  been  abolished  in  Tennessee  and 
Georgia. 

In  Alabama,  (as  in  Mississippi,)  a  man  may  convey  or  devise 
land  to  a  succession  of  donees,  then  living,  and  to  the  heirs  of  the 
remainder-man. 

In  Connecticut,  (3  Day,  332 — 9  Conn.  114,)  and  in  Vermont, 
Ohio,  Illinois,  and  Missouri,  if  an  estate  tail  be  created,  the  first 
donee  takes  a  life  estate,  and  a  fee  simple  vests  in  the  heirs  or 
person  having  the  remainder  after  the  life  estate  of  the  grantee. 
So,  in  New-Jersey.  In  Indiana,  a  person  may  be  seized  of  an 
estate-tail  by  devise  or  grant,  but  he  shall  be  deemed  seized  in 
fee  after  the  second  generation. 

In  Connecticut,  there  may  be  a  special  tenancy  in  tail,  as  in 
case  of  a  devise  to  A.  and  his  issue  by  a  particular  wife. 

In  Rhode-Island,  estates  tail  may  be  created  by  deed,  but  not 
by  will,  longer  than  to  children  of  the  devisee,  and  they  may  be 
barred  by  deed  or  will. 

Estates  tail  exist  in  Massachusetts.— 9  Mass.  167, 170,  173;  15 
Pick.  104;  20  Pick.  514;  15  Maine,  408;  5  Mass.  500,  502;  8 
Mass.  3;  4  Mass.  189.    So  in  Delaware  and  Pennsylvania;  sub- 


CH.  XVIII.]  ESTATES   TAIL.  123 

ject,  nevertheless,  in  all  these  States,  to  be  barred  by  deed  and 
common  recovery,  and  in  two  of  these  States  by  will — and  they 
are  chargeable  with  the  debts  of  the  tenant.  4  Dana's  abr.  621; 
4  Serg.  &  R.  509. 

In  Maryland,  estates  tail  general,  created  since  statute  of  1786, 
are  now  understood  to  be  virtually  abolished,  inasmuch  as  they 
descend,  can  be  conveyed,  are  devisable  and  chargeable  with 
debts,  in  the  same  manner  as  estates  in  fee  simple.  It  is  equally 
understood  that  estates  tail  special  are  not  affected  by  the  act  of 
1786.    1  Harr.  &  Gill.  111—2  Harr.  &  John.  314. 

§  3.  An  estate  tail,  is  an  estate  given  to  a  man  and  the  heirs 
of  his  body.  It  will  descend,  on  the  death  of  the  first  taker,  to  all 
his  lawful  issue,  children,  grand-children,  and  more  remote  de- 
scendants, as  long  as  his  posterity  endures,  in  a  regular  order 
and  course  of  descent  from  one  to  another ;  and,  if  the  first  own- 
er die  without  issue,  his  estate,  if  left  alone,  will  then  determine. 

An  estate  tail  may  be  either  general,  that  is,  to  the  heirs  of  his 
body  generally,  and  without  restriction,  in  which  case  the  estate 
will  be  descendible  to  every  one  of  his  lawful  posterity,  in  due 
course — Or,  it  may  be  special,  when  restrained  to  certain  heirs'of 
his  body,  and  is  not  descendible  to  all  of  them  in  general.  Thus 
if  an  estate  be  given  to  a  man,  and  the  heirs  of  his  body  by  his 
wife  Anna — here,  none  can  inherit  except  the  issue  of  that  partic- 
ular wife. 

Estates  may  also  be  in  tail  male,  or  in  i&il  female.  The  former 
can  descend  only  to  males,  the  latter  only  to  females,  and  their 
female  descendants.    2  Bl.  Com.  113,  114. 

§  4.  The  interest  of  the  donor  of  these  estates  was  of  two  kinds 
— his  interest  in  the  rents  and  services  during  the  continuance  of 
the  tenancy,  and  his  chance  or  possibility  of  again  obtaining  the 
land,  on  failure  of  the  heirs  of  his  tenant.  And  hence  it  was 
provided  in  Magna  Charta,  that  no  tenant  should  alienate  any 
more  of  his  land  than  so  as  what  remained,  might  be  sufficient  to 
answer  the  services  he  owed  to  his  lord.  But,  during  the  reign 
Henry  III.  a  change  occurred  to  the  disadvantage  of  the  lord,  so 
that,  in  whatever  form  the  grant  were  made,  the  existence  of  an 
expectant  heir,  enabled  the  tenant  to  alienate,  not  only  as  against 
bis  heir,  but  also  against  the  lord.    And  the  alienee  and  his  heirs 


^1^  ESTATES   TAIL.  [CH,  XVIII. 

could  hold  not  only  during  the  existence  of  th%  issue,  but  also 
after  their  failure.  Co.  Litt.  19,  a. — 2  Just.  333 — cited  in  New- 
Lib,  of  Law  &  Eq.  vol.  2,  No.  1,  p.  17.  This  power  of  alienation 
was,  however,  restrained  by  the  statute,  de  donis  conditionalihuSy 
created  in  the  reign  of  Edward  L — which  directed,  that  "the 
will  of  the  donor,  according  to  the  form  in  the  deed  of  gift  man- 
ifestly expressed,  should  be,  from  thenceforth,  preserved ;  so  that 
they,  to  whom  the  tenement  was  given,  should  have  no  power  to 
aliene  it,  whereby  it  should  fail  to  remain  unto  their  own  issue, 
after  their  death,  or  to  revert  unto  the  donor  or  his  heirs,  if  issue 
should  fail."  Ibid. — citing  Stat,  of  Westminster  2d.  Since  pass- 
ing this  act,  an  estate  given  to  a  man  and  the  heirs  of  his  body, 
has  been  always  called  an  estate  tail,  or  more  properly  an  estate 
in  fee  tail,  {feudum  talliatum.) 

The  inconvenience  of  strict  entails,  created  by  this  statute,  for 
about  two  hundred  years,  during  which  the  Commons  repeatedly 
attempted  to  repeal  it,  induced  the  judges,  by  a  quiet  decision, 
once  more  to  introduce  the  power  of  alienation.  (Taltarum's  case, 
Year  Book,  12  Edw.  IV.  19.)  The  mode  of  alienation  thus  intro- 
duced, took  the  name  of  common  recovery,  (besides  which  there 
also  existed  a  mode  called  fine,)  and  continued  in  use  till  1833, 
when  this  cumbrous  and  expensive  proceeding  was  abolished  by 
a  statute,  which  enabled  tenants  in  tail,  by  a  simple  deed,  en- 
rolled in  Chancery,  to  dispose  of  entailed  lands  in  fee  simple — 
thus  at  once  defeating  the  claims  of  the  issue,  and  of  all  remain- 
der-men and  reversioners.  New  Libr.  of  Law  &  Eq.  vol.  2,  No.  1, 
Oct.  1845,  p.  20. 

§  5.  A  limitation  "  to  a  man  and  the  heirs  of  his  body,"  creates 
an  estate  tail  general. 

But,  though  these  are  the  technical  terms  of  limiting  an  estate 
tail,  yet  such  an  estate  may  be  created,  in  a  will,  by  less  formal 
language ;  indeed  by  any  expressions  denoting  an  intention  to 
give  the  devise,  an  estate  of  inheritance,  descendible  to  his,  or  some 
of  his  lineal,  but  not  to  his  collateral  heirs,  which  is  the  charac- 
teristic of  an  estate  tail,  as  distinguished  from  a  fee  simple.  2 
Perk.  Jarm.  wills,  232. 

It  has  been  decided,  that  a  devise  to  one,  and  his  heirs  lawfully 
begotten,  creates  an  estate  tail.     Moore,  637;    Co.  Litt.  20,  6; 


CH.  XVlll.]  ESTATES  TAIL.  125 

Harg.  n.  2— cited  2  Perk.  Jarm.  233;  also  2  Marsh.  107;  S.  C.  7 
Taunt.  85.  The  reason  appears  to  be  that  the  testator  by  using 
the  words  "lawfully  begotten,"  intended  to  affix  some  qualifica- 
tion to  the  description  of  heir,  and  therefore  must  have  meant  an 
estate  tail.    2  Perk.  Jarm.  233. 

The  words  "heir  of  the  body,"  in  the  singular,  operate  as  words 
of  limitation,  and  consequently  confer  an  estate  tail.  Ibid. — citing 
Stig.  249,  273;  I  Bulst.  219;  I  Roll.  ab.  896.  Nor  is  the  effect 
varied  by  prefixing  the  word  "first"  or  "next"  to  the  word  "heir." 
/6ia.— citing  2  Vern.  324;  I  Vent.  230:  Rob.  Gavelk.  96,  &  I  Ves. 
Sen'r.  337;  I  Atk.  412;  2  Ld.  Raym.  1437. 

And  though  a  devise  to  the  next  heir  male,  simply  following 
a  devise  to  the  ancestor  for  life,  does  not  confer  on  the  heir  an 
estate  by  purchase,  (the  words  being  construed  as  words  of  limita- 
tion,) yet  if  the  testator  has  engrafted  words  of  limitation  on  the  de- 
vise to  the  next  heir  male,  he  is  considered  as  indicating  an  inten- 
tion to  use  the  word  "heir"  as  a  mere  descriptio  persona.  1  Co.  66, 
Archer's  case.  Such  a  devise  would  be  a  contingent  remainder. 
Ibid.  See  also  4  Myl.  &  Craig.  197,  where  the  same  doctrine 
was  held,  though  the  word  "next"  was  not  prefixed.  See  also  1 
Vent.  214;  Fearne  Con.  R.  p.  148. 

A  devise  to  A.  and  his  seed,  (Co.  Litt.  9, 6)  or  A.  and  his  issue, 
creates  an  estate  tail ;  and  a  devise  to  A.  and  his  children,  (he 
having  no  children  at  the  time,)  is  equivalent  to  a  devise  to  him 
and  his  issue,  and  creates  an  estate  tail.  15  Pick.  104,  114.  A 
deed  to  a  husband  and  his  wife,  (executed  before  the  statute  of 
Massachusetts  took  effect,)  conveying  land  to  be  held  by  them, 
during  their  lives  and  the  life  of  the  survivor,  and  by  the  heirs  of 
their  bodies,  created  an  estate  tail  in  the  grantees.    I  Metcalf,  281. 

And,  it  has  been  settled,  from  an  early  period,  that  where  a 
person  devises  lands  to  a  person  and  his  heirs,  and  then  proceeds 
to  devise  over  the  property  in  terms  showing  that  he  used  the 
word  "heirs"  in  the  prior  devise,  in  the  restricted  sense  of  "heirs 
of  the  body," — such  devise,  of  course,  conveys  only  an  estate  tail. 
Cro.  Jac.  290;  Cro.  Jac.  695;  Skinn.  19;  7  Burn.  &  E.  276— cited 
2  Perk.  Jarm.  237. 

So,  where  the  devise  over,  in  default  of  heirs  of  the  first  devi- 
see, is  to  be  in  the  course  of  descent  from  him  lineal  or  collateral. 


126  ESTATES  TAIL.  fCH.  XVUI. 

however  remote ;  because,  the  prior  devisee  could  not  in  that  case, 
die  without  heirs; — but  it  is  otherwise,  where  the  devise  over  is 
to  a  stranger.  2  Stra.  849;  Amb.  363;  2  P.  Wms.  370;  I  ib.  23; 
Willes,164;  Doug.  266;  Cowper,  234,  410,  833;  3Dum.&E. 
491,  488;  2  Marsh.  170;  6  Taunt.  485. 

§  6.  The  rule  in  Shelley's  case,  is,  that  where  an  estate  of  free- 
hold is  limited  to  a  person,  and  the  same  instrument  contains  a 
limitation  either  mediate  or  immediate,  to  his  heirs  or  the  heirs 
of  his  body,  the  word  "  heirs"  is  a  word  of  limitation — i.  e.  the 
ancestor  takes  the  whole  estate  comprised  in  this  term.  Thus,  if 
the  limitation  be  "to  the  heirs  of  his  body,"  he  takes  a  /ce  tail, — 
if  "to  his  heirs  general,"  he  takes  a.  fee  simple.  I  Rep.  93;  Moor, 
718;  I  Bulstr.  219;  Cart.  170;  2  Ld.  Ray.  870;  2  Salk.  697;  2 
Perk.  Jarm.  242,  See,  for  statement  of  this  rule,  7  Metcalf,  172; 
4  Pick.  205. 

And  words,  however  positive,  negativing  the  continuance  of 
the  ancestor's  estate  beyond  its  express  limitation,  will  not  ex- 
clude the  rule.  I  Burr.  38;  4  ib.  2579;  2  W.  Blackst.  698.  This 
rule  has  been  generally  adopted  in  the  United  States.  4  Kent, 
(5th  ed.)  214;  I  Bay.  453;  I  M'Cord's  Ch.  R.  60;  3  Battle,  455; 
I  Hawks,  163;  3  Iredell,  200;  9  Yerger,  209;  2  Wash.  9;  4  Har. 
&  John.  431;  6  Har.  &  John.  364;  I  Dall.  47;  3  Binn.  139;  5 
Ohio,  465. 

§  7.  Having  laid  down  very  briefly  the  law  respecting  estates 
tail,  it  only  remains  for  us  to  ascertain,  with  greater  certainty,  the 
effect  of  the  American  statutes  before-mentioned  upon  estates  of 
this  nature.  This  end  will  be  best  effected  by  presenting  the 
reader  with  a  few  prominent  decisions  of  the  American  Courts, 
on  this  subject. 

Words  which  would  convey  an  estate  tail  in  lands,  convey  a 
fee  simple  in  personalty.  10  John.  1 1 ;  1 1  Wend.  259;  2  M'Cord's 
Ch.  R.  337.  This  rule  applies  to  a  devise  of  negroes,  &c.  Ib.  323. 
Since  the  statute  converting  estates  tail  into  fee  simple,  executory 
limitations  of  lands  and  chattels  are  to  be  construed  alike,  upon 
the  presumed  intention  by  the  testator,  that,  in  each  case,  the 
estate  should  go  over  on  the  same  event.    4  No.  Car.  R.  441. 

§  8.  Where  a  devise  limits  a  remainder  on  a  fee  tail,  it  shall 
not  be  construed  as  an  executory  devise,  but  as  a  remainder — and 


CH.  XVlll.]  ESTATES  TAIL.  127 

it  will  under  the  act  become  a  ftt  simple.  I  Call.  165.  The 
statute  was  intended  to  operate  as  one  great  universal  recovery, 
and  to  dock  all  estates  tail  whatever.    I  Leigh,  418,  404. 

Where  testator  devised  all  his  land  and  slaves  to  his  wife  D.P. 
during  life  or  widowhood,  for  her  and  his  son  M,  P's.  support, 
and  if  his  wife  should  be  then  pregnant  and  with  a  boy,  he  should 
have  the  same  benefit  of  the  property  with  the  son  M.  P. — and 
at  his  wife's  death  or  marriage,  both  land  and  slaves  should  be 
sold  and  the  proceeds  equally  divided  between  the  two  sons ; — 
if  with  a  girl,  she  should  share  equal  benefit  of  the  property  with 
the  son  M.  P.,  while  in  the  mother's  hands — but  at  the  death  or 
marriage  should  have  only  an  equal  share  of  the  slaves.  And  if 
the  son,  M.  P.  should  die  without  lawful  issue,  then  the  whole 
estate  to  go  to  M.  P's.  brother  or  sister ; — and  if  he  should  have 
neither,  then  to  testator's  wife's  brothers  and  sisters.  The  testa- 
tor's wife  was  not  pregnant,  so  that  he  left  only  one  son,  M.  P. — 
Held,  that  if  the  land  in  consequence  of  the  direction  to  sell  were 
to  be  considered  as  money,  his  son  took  the  remainder  expectant 
(Ml  his  mother's  estate  for  life  or  widowhood,  in  absolute  property, 
and  the  ulterior  executory  limitation  was  void.  But  considering 
it  as  real,  he  took  an  estate  tail  in  the  remainder,  with  a  contin- 
gent remainder  limited  on  his  estate,  in  the  event  of  the  failure 
of  issue.    3  Leigh,  103. 

Where  testator,  owning  realty  and  personalty,  partly  in  his 
own  right  and  partly  in  right  of  his  wife,  devised  "all  the  profits 
of  his  estate,  after  providing  genteel  support  for  his  wife  and 
daughter,  to  be  applied  to  his  debts ;  and  after  payment  of  debts 
his  estate  to  be  kept  together  for  the  mutual  benefit  of  his  wife 
and  daughter,  till  the  daughter  attain  full  age  or  marry,  after 
which  the  estate  should  be  divided  in  the  following  manner — to 
his  wife,  one  half  of  the  land  he  lived  on,  and  one  half  of  his  es- 
tate during  her  life,  and  if  his  wife  died  without  any  more  issue, 
the  whole  of  his  estate  should  revert  to  his  daughter ;  and  if  his 
daughter  died  without  issue,  the  whole  of  his  estate  should  revert 
to  his  wife ;  and  if  both  died  without  issue,  then  that  part  of  the 
estate  which  came  by  his  wife  should  revert  to  her  brothers  and 
sisters  that  may  be  then  living,  and  the  balance  of  his  estate  shall 
revert  to  his  brother  T.  and  his  heirs,  if  any;  if  none,  to  be  equal- 


168  ESTATES   TAIL.         '  [CH.  XVlll. 

ly  divided  between  the  testator's  two  half  brothers.  If  his  wife 
marry  and  have  issue,  he  wished  her  to  have  the  disposal  of  the 
whole  of  the  property  that  came  by  her.  Htld — 1st.  The  daugh- 
ter took  the  half  of  the  land  not  devised  to  the  wife.  2d.  The 
daughter  took  an  implied  tstatt  tail  in  the  moiety  devised  to  her, 
and  the  wife  a  similar  estate  in  the  moiety  of  the  land  expressly 
devised  to  her  for  life,  each  of  which  estates  tail  was  converted 
into  a  fee  simple,  by  force  of  the  statute.  3d.  The  statute  barred 
the  remainders  which  were  executory  devises.*     Ibid.    See  also 

1  Rand.  194;  I  Wash.  381. 

Where  a  testator  devised  to  his  son  W.  part  of  his  plantation, 
and  if  he  should  chance  to  die  loithout  heir  or  issue,!  the  above 
said  land  must  fall  into  the  possession  of  his  brother  R.  He  then 
bequeathed  the  remainder  of  the  plantation,  providing  in  the 
same  manner,  that  if  he  should  die  without  heir  or  issue,  the 
plantation  should  go  to  W.,  "  by  them  freely  to  be  possessed  and 
enjoyed.    Held — W.  took  an  estate  tail.    3  Wash.  C.  C.  R.  369; 

2  Binn.  455.  Our  statute  would  in  such  case,  change  the  estate 
to  one  of  in  fee  simple.  See  also  2  Y.  400;  3  S.  &  R.  470;  4  S. 
&  R.  509;  I  S.  &  R.  203;  17  S.  &  R.  441;  4  Wash.  C.  C.  R.  16; 

3  R.  489;  ibJ  59;  16  S.  &  R.  323;  17  S.  &  R.  61;  I  Wh.  139;  9 
W.  450;  6  ib.  18 — for  examples  of  estates  tail,  in  Pennsylvania. 

Where  a  devise  was  to  B.  and  his  male  heirs,  and  if  no  male 
heirs  then  to  his  daughters,  and  if  B.  died  without  issue  then  to 
the  daughters  of  A.  Held — B.  took  an  estate  tail — 3  Day.  332 — 
Under  our  statute,  a  fee  simple. 

Where  a  devise  was  to  A.,  and  if  he  die,  without  any  lawfully 
begotten  heir  of  his  body,  then  to  his  brothers  and  sisters.  Held, 
that  the  devise  to  A.  was  of  an  estate  tail,  which  by  the  act  of 
1784,  is  converted  into  a  fee  simple,  and  the  ulterior  limitation  is 
therefore  void.     I  Hawks,  247;  2  ib.  437— See  also  2  Hay.  130; 

4  Dev.  376,  and  12  John.  R.  169.t 

*Ii  is  not  legal  to  devise  a  fee  on  a  fee.  3  Atk.  6l7;  1  Ves.  89;  1  Salk.  238; 
11  Mod.  207;  WUles,  164.  But  the  Court  will  in  all  cases  effect  the  presumed 
intention  of  the  the  testator  by  restraining  the  first  devise  to  an  estate  tail,  if  there 
are  sufficient  words  to  denote  such  intention.    3  Atk.  617. 

t  See  title  "  Void  Devises,"  post. 

^  Estates  tail  are  not  simply  abolished  and  thrown  back  to  fees,  conditional  at 
Common  law,  by  the  statute,  but  the  statutes  suffer  the  estate  tail  to  arise,  and 
then  change  it  into  a  fee  simple.    2  Cow.  333;  13  Wend.  437. 


CH.  XIX.J  CONTINGENT   REMAINDER.  129 


CHAPTER  XIX. 

CONTINGENT    REMAINDER. 

§  1.  A  contingent  remainder  is  an  estate  in  remainder  limited 
to  take  eifect,  either  to  a  dubious  or  uncertain  person,  or  upon  a 
dubious  and  uncertain  event ;  so  that  the  particular  estate  may 
chance  to  determine  and  the  remainder  never  take  effect.  Fearne, 
C.R.216,(7thed.) 

But  the  person  must  be  such  as  by  common  possibility  may  be 
in  esse,  and  the  event  such  as  by  common  possibility  may  hap- 
pen, before  the  termination  of  the  particular  estate.  Subject  to 
this  rule,  there  may  be  a  possibility  on  a  possibility,  and  not  too 
remote.  Fearne,  C.  R.  251.  A  devise  to  A.  and  his  male  child- 
ren, lawfully  begotten  of  his  body,  and  their  heirs  forever,  to  be 
equally  divided  among  them  and  their  heirs  forever — passes  a  life 
estate  to  A.  with  contingent  remainder  in  fee  to  his  children,  he 
having  no  children  at  date  of  the  will.  I  Sumner's  C.  C.  R. 
235, 

§  2.  It  is  not  merely  the  uncertainty  whether  or  not  a  remain- 
der will  ever  take  effect,  that  makes  it  contingent,  because  every 
contingent  remainder  is  liable  to  like  uncertainty — as  the  remain- 
der-man may  die,  or  die  without  issue,  before  the  determination 
of  the  particular  estate.  The  true  criterion  is,  the  present  capaci- 
ty to  take  effect  in  possession,  if  the  particular  estate  should  de- 
termine. If  there  be,  the  remainder  is  vested — otherwise,  it  is 
contingent.  Fearne,  C.  R.  216,  (7th  ed.)  2  Hill's  S.  C.  Ch.  R.  44; 
I  ib.  358;  5  Paige,  318. 

§  3.  Whenever  a  contingent  remainder  is  limited  to  depend 
on  an  estate  of  freehold,  which  is  capable  of  supporting  a  remain- 
der, it  shall  never  be  construed  as  an  executory  devise,  but  as  a 
contingent  remainder.  15  Pick.  104,  110.  But  although  contm- 
gent  remainders  of  a  freehold  cannot  rest  on  any  particular  estate 
less  than  a  freehold,  actual  seizin  of  the  estate  is  not  necessary — 
Ibid. 

17 


130  CONTINGENT   REMAINDKR.  [CH.  XIX. 

§  4.  Contingent  Remainders  are  of  four  kinds — 

1st.  Where  the  remainder  depends  on  the  contingent  determi- 
nation of  the  preceding  estate  itself.  But  the  existence  of  a  pow- 
er to  appoint  among  a  class  of  persons  who  are  known  and  as- 
certained, does  not  render  the  remainder  to  the  class  contingent. 
The  remainder  vests  in  the  class,  subject  to  be  divested  as  to 
some  of  the  class  by  the  execution  of  the  power.  5  Paige,  318. — 
Where  the  testator  did  not  intend  to  vest  the  estate  in  any  of  the 
remainder-men,  until  the  power  of  appointment  in  their  favor  was 
executed,  but  made  the  right  of  the  remainder-men  dependent  on 
the  decision  of  the  trustees  in  their  favor,  as  to  their  moral  char- 
acter at  the  time  appointed  by  the  testator,  for  the  vesting  of  the 
remainder  in  possession — held,  the  remainders  were  contingent 
during  the  precedent  estate.    5  Paige,  318. 

2d.  Where  the  contingency  on  which  the  remainder  is  to  take 
effect  is  independent  of  the  determination  of  the  preceding  es- 
tate. 

3d.  Where  the  condition  on  which  the  remainder  is  limited, 
is  certain,  but  the  determination  of  the  particular  estate  may  hap- 
pen before  it. 

Where  the  testator  devised  that  after  the  death  of  his  wife,  his 
estate  should  be  given  to  seven  persons  by  name,  and  to  the 
children  of  E.  E. — Held,  the  children  of  E.  E.  living  at  the  death 
of  the  wife  took  the  eighth  part,  and  no  estate  vested  in  E.  E's. 
children.  2  Hill's  S.  C.  Ch.  R.  44;  I  ib.  358.  Where  a  contin- 
gent  remainder  is  left  to  a  class  of  persons  by  description,  on  a 
contingency  disconnected  with  the  persons,  the  estate  vests  in  the 
person  answering  the  description  when  the  contingency  happens. 
3  Halst.  90;  2  South.  427. 

4th.  Where  the  person  to  whom  the  remainder  is  limited,  is 
not  yet  ascertained  or  not  yet  in  being.  Fearne.  C.  R.  3, 4;  Sum- 
ner's C.  C.  R.  305.  For  if  the  devisee  be  ascertained  and  is  in 
being,  who  will  if  he  lives,  have  an  absolute  and  immediate 
right  to  the  possession  of  the  land,  on  the  ceasing  or  failure  of 
all  the  precedent  estates,  provided  the  estate  limited  to  him  in 
remainder  continues  to  exist — his  remainder  is  vested  and  not 
contingent.    5  Paige,  318. 


CH.  XIX.]  CONTINGENT  REMAINDER.  I3l 

§  5.  When  a  contingent  remainder  intervenes  between  the 
particular  estate  and  the  limitation  over,  if  the  intervening  limi- 
tation be  in  fee,  it  is  contingent — as  a  devise  to  A.  for  life,  re- 
mainder to  his  unborn  son  in  tail,  remainder  to  B.  in  fee.  (Un- 
der our  statute,  the  intermediate  limitation  would  become  a  fee, 
and  the  remainder  over  void.)    Fearne.  C.  R. 

§  6.  When  a  contingent  remainder  is  given  with  remainder 
over  to  a  person  in  being,  capable  to  take,  if  the  contingent  re- 
mainder never  takes  effect,  the  remainder  over  will  nevertheless 
be  good.    Fearne,  237,  et  seq.;  6  Halst.  244. 

§  7.  A  distinction  exists  where  words  only  denote  the  time  when 
a  remainder  is  to  take  effect  in  possession,  and  those  cases  where 
they  amount  to  a  condition  precedent.  As,  where  there  is  a  de- 
vise to  A.  till  B.  arrive  at  21  years  of  age,  and  when  B.  shall  at- 
tain that  age,  then  to  him  in  fee ; — this  is  not  a  condition,  but  a 
limitation,  and  the  remainder  vests  in  B.  (See  title.  Vested  Re- 
mainder.)   Tucker's  Comm.  ch.  9,  p.  142. 

§  8.  In  limiting  contingent  remainders,  it  is  necessary  that  the 
contingent  event  be — 

1st.  A  legal  one — and 

2d.  Not  too  remote.  It  must  not  be  only  a  possible  event,  but 
a  common  possibility,  as  death — death  without  issue,  and  such 
like.  Fearne,  250.  There  cannot  be  two  contingencies.  Ibid. 
The  person  must  be  such  as  by  common  possibility  may  be  in  esse, 
and  the  event  such  as  by  common  possibility  may  happen,  before 
the  termination  of  the  particular  estate.  Subject  to  this,  there  may 
be  a  possibility  on  a  possibility,  and  not  too  remote.  Fearn.251. 
A  contingent  remainder  may  be  limited  on  a  contingent  remain- 
der, if  the  latter  must  vest  in  interest  (if  ever,)  within  the  period 
of  two  lives  in  being  at  the  creation,  or  termination  of  the  pre- 
ceding estate.    5  Paige,  318. 

3d.  It  must  not  defeat  the  preceding  estate.    Fearne,  250. 


132  EXECUTORY    DEVISE.  [CH.  XX. 


CHAPTER  XX. 

EXECUTORY    DEVISE. 

§  1.  Contingent  remainders  are  future  estates,  liable,  until  they 
actually  vest,  to  be  wholly  destroyed.  Executory  interests,  on 
the  contrary,  are  future  estates,  in  their  nature,  indestructible. — 
Fearn.321. 

§  2.  A  contingent  remainder  requires  a  particular  estate  to  sup- 
port it.  The  reason  is,  the  word  remainder  is  a  relative  term,  and 
implies  a  previous  disposition  of  part  of  the  thing  devised. 

It  is  a  rule  of  Common  law,  that  a  freehold  estate  cannot  be 
created  to  commence  infuturo.  But  this  rule  applies  only  to 
estates  in  remainder,  created  by  deed — it  having  long  since  yield- 
ed to  the  importunity  of  testators  in  the  cases  of  executory  devises. 
Comstock's  Digest. 

§  3.  Executory  devises  are  of  three  kinds — ^two  relating  to  real, 
and  one  to  personal  estate  only,  to  wit : 

1st.  Where  the  devisor  parts  with  the  whole  fee  simple,  but 
qualifies  the  disposition  with  a  contingency,  and  limits  an  estate 
on  that  contingency.  4  Kent,  262.  See  also  sec.  3,  paragraph  2, 
post. 

2d.  Where  the  testator  gives  a  future  estate  to  arise  upon  a 
contingency,  but  does  not  part  with  the  fee  at  present.  Feam.302. 
Or  where  the  testator  gives  a  future  estate,  to  arise  upon  an  event 
certain,  and  unpreceded  by  any  immediate  freehold,  to  give  it 
eflFect  as  a  remainder.     Ibid. — See  sec.  4,  paragraph  1. 

3d.  Where  a  term  for  years,  or  any  other  personal  estate  is  be- 
queathed to  one  for  life  or  otherwise,  and  after  the  decease  of  the 
legatee  for  life,  or  some  other  period  or  contingency,  is  given 
over  to  another — and  thus  whether  the  use  merely,  or  the  thing 
itself  be  bequeathed.  Comstock's  digest,  151;  2  Day,  28,  52 — 
and  see  sec.  4,  paragraph  3,  post. 

§  4.  Hence  it  may  be  perceived  that  an  executory  devise  of 
lands  is  such  a  disposition  of  them,  by  will,  that  no  estate  vests 


CH.  XX.]  EXECUTORY    DEVISE.  133 

at  the  death  of  the  testator,  but  only  on  some  future  contingency. 
It  differs  from  a  contingent  remainder  in  these  respects : 

1st.  An  executory  devise  does  not  require  a  particular  estate 
to  support  it. 

2d.  By  an  executory  devise  a  fee  simple  or  other  less  estate, 
may  be  limited  after  a  fee  simple. 

3d.  By  an  executory  devise,  a  remainder  may  be  limited  of  a 
chattel  interest,  after  a  particular  estate  for  life  created  in  the 
same.    See  5  Yerger,  369. 

§  5.  An  executory  devise  is  only  an  indulgence  allowed  to  a 
man's  last  will  and  testament,  when  otherwise  the  words  of  the 
will  would  be  void. 

For  wherever  a  future  interest  is  so  limited  by  a  devise  as  to 
fall  within  the  rules  laid  down  for  the  limitation  of  a  contingent 
remainder,  such  an  interest  is  not  an  executory  devise,  but  a  con- 
tingent remainder.     Comstock's  Dig.  148;  15  Pick.  104,  110. 

For  examples,  see — 5  Yerger,  369;  3  B.  Monroe,  487;  2  Cow- 
en,  333. 

§  6.  An  executory  devise  limited  to  take  effect  upon  the  death 
of  the  first  taker  without  issue,  was  at  Common  law  held  to  be 
void  on  account  of  the  remoteness  of  the  contingency,  as  it  could 
not  take  place  until  after  an  indefinite  failure  of  issue.  And  that 
rule  governs  all  cases  of  devises  made  by  testators  who  died  pre- 
vious to  the  statutes.  Now,  however,  it  is  declared  by  statute 
that  in  such  case,  issue  shall  be  construed  to  mean  issue  living 
at  the  death  of  the  person  named  as  ancestor.  26  Wend.  229. 
See  further  on  this  head,  "Void  Devises." 


134  VESTED   REMAINDERS.  [cH.  XXI. 


CHAPTER  XXI. 

,   VESTED    REMAINDERS. 

§  1 .  A  vested  remainder  is  where  the  estate  is  invariably  fixed 
to  remain  to  a  determinate  person  after  the  particular  estate  is 
spent.    Toml.  L.  Dicty.  334. 

§  2.  A  remainder  shall  be  considered  vested  rather  than  con- 
tingent— 5  Mass.  535 — even  in  case  of  doubt. — 21  Pick.  311, 314; 

5  Mass.  525;  4  Pick.  198;  2  Pick.  468, 469;  4  Dana,  572;  23  Pick. 
287;  25  Wend.  119;  1  Watts.  &  S.  205;  3  Myl.  &  K.  257. 

But  the  favor  shown  to  vested  estates  is  not  to  be  so  pressed  as 
to  defeat  the  intent  of  the  testator.  7  Metcalf,  171;*  2  Mer.  38. 
Nor  where  the  attainment  of  age  is  not  the  only  circumstance  fix- 
ed for  the  vesting  of  the  estate,  but  a  preliminary  act  is  to  be  done 
by  the  devisee,  before  his  title  accrues.  1  Keen.  186;  1  Perk. 
Jarm.  742. 

§  3.  The  reason  of  the  foregoing  rule  is,  that  a  will  takes  eifect 
at  the  testator's  death,  and  therefore  any  devise  or  bequest  in  fa- 
vor of  a  person  in  esse  simply,  (without  an  express  or  implied 
intent  to  postpone  its  operation,)  confers  an  immediately  vested 
interest. 

If  words  of  futurity  are  introduced  into  the  gift,  the  question 
arises  whether  the  expressions  are  inserted  for  the  purpose  of 
protracting  the  investing,  or  merely  to  defer  the  possession  and 
enjoyment.     1  Perk.  Jarm.  wills,  726;  Fearne,  C.R.  329;  3  Dum. 

6  E.  41;  9  E.  400;  1  Mau.  &  Selw.  692;  2  Brod.  &  Bing.  249; 

1  Barn.  &  Cress.  721;   Adol.  &  E.  636,  recent  case;   15  Ves.  29; 

2  Mer.  138: 

§  4.  Where  a  remainder  is  limited  "in  default,  or  for  want"  of 
the  objects  of  the  preceding  limitation,  these  words  mean,  the  de- 
termination of  the  prior  estate,  and  do  not  render  the  remainder 

*A  contingent  interest  an  real  and  personal  estate  may  so  vest,  that  it  will  go 
to  the  real  and  personal  representative  of  the  person  interested,  if  he  dies  before 
the  happening  of  the  contingencv.  7  Chand.L.R.  181,  183 — Jane,  1844;  7  Met* 
calf,  363;  4  Call,  3? I. 


CH.  XXI.]  VESTED   REMAINDERS.  135 

contingent  on  the  event  of  such  prior  object  not  coming  into  ex- 
istence. The  remainder  is,  therefore,  vested — absolutely  expect' 
ant  on  the  failure  or  determination  of  the  prior  estate.  I  Perk. 
Jarm.  728— citing  I  Bos.  &  Pull.  250;  D.  &  E.  112;  4  Mau.  & 
Sel.88;  6  East.  336.  Though  a  devise  to  a  person,  "  if  he  attain  a 
particular  age,"  is  contingent ;  yet  followed  by  a  limitation  over, 
in  case  he  die  under  such  age,  the  devise  over  explains  the  inten- 
tion to  be,  that  at  his  coming  of  age  the  devisee's  interest  should 
become  indefeasible  and  absolute — the  interest  therefore  vests 
instarUer.  9  Ves.  233;  3  Myl.  &  K.  257;  14  E.  601;  1  Mau.  & 
Sel.327;  9  Ad.  &  Ell.  582. 

§  5.  The  general  rule  is,  that  where  a  remainder  is  limited  on 
the  contingent  determination  of  the  preceding  interest,  and  the 
prior  gift  in  event  takes  eifect,  but  is  afterwards  determined  in  a 
mode  different  from  that  which  is  so  expressed  by  the  testator, 
the  remainder  fails.    8  Vin.  ab.  221;  3  Atk.  282. 

But  an  exception  to  this  rule  exists  in  a  case,  where  a  testator 
makes  a  devise  to  his  widow,  for  life,  if  she  so  long  continue  a 
widow,  and  if  she  shall  marry  then  over ;  in  which  case,  the  de- 
vise does  not  depend  on  the  contingency  of  the  widow's  marry- 
ing again,  but  takes  effect  on  either  contingency  whether  of  mar- 
riage or  death.  23  Pick.  287;  3  Lev.  125;  1  Vent.  203;  Amb.209; 
3  Atk.  282. 

The  distinction  then  is,  where  the  non-marriage  is  of  the  orig- 
inal gift,  the  testator,  having  thus  in  the  first  instance  created  an 
estate  during  widowhood,  must  be  considered,  when  he  subse- 
quently refers  to  the  marriage,  to  describe  the  determination  by 
any  means  of  that  estate,  and  consequently  the  gift  over,  is  a.  vested 
remainder,  expectant  thereon.  1  Perk.  Jarm.  733;  I  Hill's  S.  Ca. 
Ch.  R.  358.  On  the  other  hand,  if  the  testator  first  gives  an  ab- 
solute estate  for  life,  and  then  engrafts  thereon  a  devise  over  to 
take  effect  on  the  marriage  of  such  devisee  for  life ;  the  conclusion 
is,  the  devise  over  is  not  to  take  effect,  unless  the  contingency 
happens.    1  Perk.  Jarm.  733 — See  also,  1  Durn.  &  E.  389. 

And  where  a  testator  bequeathed  a  sum  of  money,  a  slave  and 
her  children  to  his  wife,  "to  hold,  &c.  during  her  natural  life, 
and  at  her  death  to  descend  to  her  grand-daughter" — Held,  that 
the  legacy  in  remainder  to  the  grand-daughter  vested  immediately. 


136  VESTED    REMAINDERS.  [CH.  XXL 

and  did  not  depend  on  the  widow's  acceptance  or  renunciation  of 
the  will.    6  Dana,  347;  4  Dana,  570. 

§  6.  A  devise  over  after  payment  of  debts,  is  a  vested  interest 
,— the  words  of  apparent  postponement  being  considered  as  only 
creating  a  charge.     1  P.  W.  505;  1  Ves.  142. 

§  7.  An  estate  will  be  construed  to  be  contingent,  if  clearly  so 
expressed,  however  absurd  and  inconvenient  may  be  the  conse- 
quences to  w^hich  such  a  construction  may  lead ;  and  however  in- 
consistent with  what  it  may  be  conjectured-  would  have  been  the 
testator's  actual  meaning,  if  his  attention  had  been  drawn  to  these 
consequences.  4  Kent,  (5th  ed.)  406;  21  Pick.  311;  14  Pick. 
108;  6  Durnf.  &  E.  512;  1  P.  W.  401;  3  Ves.  317;  6  Dow.  22; 
1  Ves.  562. 

But  where  the  construing  of  a  devise  to  be  contingent,  confor- 
mably to  its  letter,  would  render  nugatory  a  purpose  clearly  ex- 
pressed by  the  testator,  the  Courts  will  avoid  such  a  construction. 
Doug.  63;  3  Mau.  &  Selw.  25. 

§  8.  As  a  devise  expressly  made  to  take  effect  on  a  contingency 
will  not  arise  unless  such  contingency  happen,  it  follows,  a  fortiori, 
that  an  estate  once  vested,  will  not  be  divested,  unless  all  the  e- 
vents,  which  are  to  precede  the  vesting  of  a  substituted  devise, 
happen.  7E.269;  2B.&Ald.441;  12E.288;  5Ves.207;  9Sim. 
644;  3Madd.410;  lKee.238;  2Jac.& Walk. 459;  2Kee.590. 

§  9.  When  a  contingent  particular  estate  is  followed  by  other 
limitations,  a  question  frequently  arises,  whether  the  contingency 
affects  such  estates  only,  or  extends  to  the  whole  series.  The  rule 
seems  to  be,  if  the  ulterior  limitations  immediately  follow  the  par- 
ticular contingent  estate,  the  whole  will  be  presumed  to  hinge  on 
the  same  contingency.  2  P.  W.  390;  Doug.  75;  Fearne,  C.  R. 
236;  16  Ves.  283;  4  Dana,  573;  5  ib.  439. 

A  contrary  rule  prevails  in  two  instances — 1st.  Where  the 
words  of  contingency  are  referrible  to  an  intention  of  the  testa- 
tor in  regard  to  that  estate,  in  contradistinction  to  the  others.  1 
Durn.  &  E.  346;  Hutt.  119;  Doug.  63. 

2d.  Where  the  ulterior  limitations  do  not  follow  the  contin- 
gent estate,  in  the  nature  of  remainders,  but  as  independent,  sub- 
stantive gifts.  2  Sim.  &  Stu.  199.  For  further  information,  see 
title  "Legacy,"  post. 


CH,  XXII,]  ESTATES  ON  CONDITION.  137 

A  legacy  may  be  vested,  though  payable  at  a  future  pericxl.  2 
M'Cord's  Ch.  R.  258;  3  Peters,  379. 

Where  a*  husband  bequeathed  to  his  wife  the  management  of 
his  estate,  during  widowhood,  and  a  child's  inheritance  of  the 
same,  in  case  of  second  marriage — held,  that  it  gave  a  vested  lega- 
cy on  the  death  of  the  husband.    7  Howard,  425. 


CHAPTER  XXII. 


ESTATES   ON    CONDITION. 


§  1.  Conditions  are  precedent  or  subsequent — 

If  precedent,  the  estate  devised  cannot  vest,  till  the  condition 
te  performed.  If  subsequent,  the  estate  will  vest  subject  to 
forfeiture,  if  the  condition  be  not  performed.  1  Perk.  Jarm.  wills, 
796. 

§  2.  Very  slight  circumstances  will  go  to  show  that  a  legacy  is 
vested  and  not  conditional.  4  Dana,  572.  Conditions  which  go 
to  defeat  estates  are  odious,  and  to  be  construed  strictly.  Shep, 
T.  129. 

§  3.  It  is  a  well  settled  rule  that  there  are  no  technical  appro- 
priate words,  which  always  determine,  whether  a  devise  be  on  a 
condition  precedent  or  subsequent. 

The  same  words  have  been  determined  diflferently,  and  the 
question  is  always  one  of  intention. 

If  the  language  of  the  particular  clause,  or  of  the  whole  will, 
shows  that  the  act  on  which  the  estate  depends  must  be  perform- 
ed before  the  estate  can  vest,  the  condition  of  course  is  precedent; 
and  unless  it  is  performed,  the  devisee  can  take  nothing.  If,  on 
the  contrary,  the  act  does  not  necessarily  precede  the  vesting  of 
the  estate,  but  may  accompany  or  follow  it — if  this  is  to  be  cot 
18 


138  ESTATES  ON  CONDITION.  [CH.  XXII. 

lected  from  the  whole  will,  the  condition  is  subsequent.    3  Pe- 
ters, 377. 

The  result  of  these  two  principles  is,  that  a  devise  to  A.  on 
condition  that  he  shall  marry  B.  (if  uncontrolled  by  other  words,) 
takes  effect  immediately,  and  the  devisee  performs  the  condition 
if  he  marries  B.  at  any  time  during  his  life.  3  Peters,  376.  And 
where  the  words  of  the  devise  are,  "  In  case  of  leaving  no  child- 
ren, I  leave  and  bequeath  all  my  real  estate,  at  the  death  of  my 
wife,  to  William  King,"  the  whole  estate  is  devised  to  William 
King,  but  the  possession  of  the  real  estate  devised  to  the  wife  for 
life,  is  postponed,  till  after  death.    3  Peters,  379. 

I.    CONDITIONS  PRECEDENT. 

§  4.  Where  a  testator  devised  an  estate  to  his  sons,  they  joint- 
ly and  severally  paying  to  each  of  his  two  daughters,  a  certain 
sum  within  one  year  after  his  decease — Held,  this  was  a  condi- 
tional devise,  and  the  performance  of  the  condition  within  the 
year,  was  necessary  to  entitle  the  sons  to  the  estate.  2  Conn.  R. 
796. 

A  devised  one-fourth  of  his  real  estate  to  be  appraised  accord- 
ing to  law,  retained  by  his  executors,  and  the  interest  thereon  an- 
nually paid  to  his  daughter  H.  during  the  minority  of  her  child- 
ren, and  the  principal  to  the  children  as  soon  as  they  become  of 
age — Held,  that  an  estate  was  given  to  the  executors  upon  the 
condition  they  should  perform  the  directions  of  the  testator,  in 
relation  to  his  daughter  and  her  children,    7  Conn.  R.  205. 

A  testatrix  used  language  in  her  will  showing  her  reason  for 
her  bequest,  and  her  expectation  to  be,  that  an  advancement  made 
by  her  husband  to  her  son  would  be  brought  into  hotch-pot — 
Held,  that  a  compliance  with  this  expectation  was  a  condition  of 
the  legacy.    1  Dana,  199. 

For  other  examples,  see  1  Perk.  Jarm.  796,  etseq. 

§  5.  The  argument  in  favor  of  a  condition  being  precedent,  is 
stronger  where  a  gross  sum  of  money  is  to  be  raised  out  of  land, 
than  where  it  is  a  demise  of  the  land  itself — where  a  pecuniary 
legacy  is  given,  than  a  residue — 2  P.  W.  626 — where  the  nature 
of  the  interest  is  such  as  to  allow  time  for  the  performance  of  the 
act,  before  its  usufructuary  enjoyment  commences,  than  where 
not-— Willes,  153 — where  the  condition  is  capable  of  being  per- 


CH.  XXII.]  ESTATES  ON  CONDITION.  139 

formed  instanter,  than  where  time  is  requisite  for  the  perform- 
ance— 4  Burr.  1940.  While,  on  the  other  hand,  the  circumstance 
of  a  definite  time  being  appointed  for  the  performance  of  the 
condition,  but  none  for  the  vesting  of  the  estate,  favors  the  sup- 
position of  its  being  a  condition  subsequent.  1  Salk.  170;  2 
Scott,  67.* 

CONDITIONS    SUBSEQUENT. 

§  6.  Where  there  is  a  general  devise  in  words  importing  a 
present  interest,  in  a  will  making  no  other  disposition  of  the 
property,  on  a  condition  that  may  be  performed  at  any  time,  the 
condition,  is  subsequent.     3  Peters,  376;  9  Wheat.  325. 

A.  gave  his  estate  to  his  wife  and  children,  and  inserted  in  his 
will  the  following  clause — My  executors  shall  retain  in  their 
hands  one  equal  share  of  my  estate,  which  they  shall  give  in  e- 
qual  portions  to  my  three  grand-children,  (naming  them,)  equal- 
ly, when  they  marry  or  come  of  age — Held,  the  interest  of  the 
legatees  is  vested,  and  not  contingent,  and  at  the  death  of  either 
legatee  his  portion  would  go  to  his  heirs.    4  Dana,  570. 

A  devise  of  land  "  for  the  purpose  of  building  a  school-house, 
for  the  use  of  a  school  provided  it  be  built"  on  a  certain  site,  is 
on  a  condition  subsequent.    5  Pick.  528. 

So,  of  a  devise  of  land  to  a  town,  to  use  and  improve  forever, 
and  not  to  be  sold  but  rented  out,  and  the  rents  applied  to  the 
ministry  of  the  town.  10  Pick.  309.  See  also,  Cro.  El.  795;  1 
Vern.  79;  2  P.  W.  626;  4  Burr.  1929,  cited  in  1  Perk.  Jarm.  801; 
In  the  case  of  Peyton  vs.  Bury,  where  one  bequeathed  the  resi- 
due of  his  personal  estate  to  S.,  provided  she  married  with  the 
consent  of  A.  and  B.  his  executors  in  trust,  and  if  S.  should  mar- 
ry otherwise,  then  the  said  residuum  to  W.  A.  died,  after  which 
S.  married  with  the  consent  of  B. — held,  that  in  the  nature  of 
the  thing  and  according  to  the  intention  of  the  testator,  this  could 
not  be  a  condition  precedent ;   for,  at  that  rate,  the  right  to  the 


•Where  testator  boqueathed  certain  negroes  to  his  helpless  daughter  B.,  and 
then  declares,  "I  alluw  my  daughter  M.,  to  take  care  of  my  said  daughter  B., 
and  at  her  decease  I  allow  my  said  daughier  M.  to  have  the  said  negroes  to  her 
and  her  heirs."  &c. — held,  a  bequest,  on  condition,  that  if  M.  should  not  take 
care  of  B.,  the  remainder  would  not  vest,  and  the  negroes  might  be  sold  for  the 
support  of  B.     1  Wills.  Ch.  R.  55. 


140  ESTATES  ON  CONDITION.  [CH.  XXII» 

residue  might  not  have  vested  in  any  person  whatever,  for  tweii' 
ty  or  thirty  years  after  the  testator's  death,  since  both  the  execu- 
tors might  have  lived,  and  S.  have  continued  so  long  unmarried, 
during  all  which  time  the  right  to  the  residue  could  not  be  said 
to  be  (beneficially)  in  the  executors,  they  being  expressly  describ- 
ed only  as  executors  in  trust.  2  P.  W.  626.  The  testator  meant 
that  marriage  without  consent  was  to  be  a  forfeiture.  The  case 
is  analagous  in  principle,  to  those,  in  which  a  devise  or  bequest 
if  the  object  shall  attain  a  certain  age,  with  a  gift  over  in  case  he 
shall  die  under  that  age — is  held  to  be  vested  instanter.  9  Ves. 
233;  3  Myl.  &  K.  257.    See  also  2  Atk.  16. 

EFFECT  OF  CONDITIONS    PRECEDENT  AND  SUBSEQ,UENT. 

§  7.  Where  a  condition  precedent  becomes  impossible  to  be 
performed,  the  devise  fails.    2  Edw.  78;  4  Kent,  (5th  ed.)  125. 

But  if  the  performance  of  a  condition  subsequent  be  rendered 
impossible,  the  estate  to  which  it  is  annexed  becomes  by  that  e- 
vent  absolute.  2  Story's  Eq.  Jur.  S.  34,  et  seq.;  4  Kent,  (5th  ed.) 
129,  130;  10  Pick.  507;  9  Wheat.  489. 

If  the  performance  be  rendered  impossible  by  the  act  of  the 
grantor,  the  condition  is  void.    6  Peters,  691,  745.  4  Cowen,  39. 

Where  a  condition  is  not  a  condition  precedent,  but  subse- 
quent, the  estate  will  vest  immediately ;  but  a  subsequent  per- 
formance is  necessary  in  order  to  prevent  the  forfeiture  of  the 
devise,  (unless  such  performance  be  rendered  impossible,  or  is 
illegal,  or  inconsistent  with  the  nature  of  the  devise — in  which 
case  the  condition  will  be  void,  and  the  devise  shall  stand.)  But 
it  is  otherwise  if  the  condition  be  precedent. 

Where  the  devise  is  on  a  condition  subsequent,  it  may  be  con- 
strued as  regards  time  of  taking  possession,  as  if  there  were  no 
condition  at  all,  and  it  opposes  no  obstacle  to  immediate  posses- 
sion, if  the  intention  of  the  testator  requires  that  construction. — 
3  Peters,  376. 

Ann  Smith  devised  to  John  Smith  a  plantation  and  tract  of 
woodland,  during  his  natural  life,  and  after  his  death,  to  such  of 
the  lawful  issue  of  the  body  of  said  John  Smith  as  should  arrive 
at  the  age  of  twenty-one  years,  and  to  the  survivois  of  such  issue; 
Provided,  also,  the  said  John  Smith  should  convey  by  a  good  and 


OH.  XXII.]  ESTATES  ON  CONDITION.  141 

sufficient  conveyance  in  law,  unto  Israel  Smith  the  son  of  Hill 
Smith,  all  his  John  S's.  title  to  his  father's  real  estate :  and  provi- 
ded also,  the  said  John  S.  should  release  all  accounts  and  charges 
against  her  or  her  executor,  and  all  accounts  against  Israel  Smith, 
above  named ;  and  in  case  of  said  John  Smith's  refusal  to  make 
such  conveyance  to  the  said  Israel  Smith,  then  his  devise  to  be 
void,  and  in  that  case  the  testatrix  devised  the  said  plantation  to 
Israel  Smith,  and  the  heirs  of  his  body.  John  Smith  died  in  the 
life-time  of  the  testatrix,  leaving  three  children  all  under  age,  and 
without  having  made  any  conveyance  to  Israel  Smith,  of  the  real 
estate  of  his  father,  and  without  any  release  as  required — Hdd, 
the  condition  of  the  devise  to  John  S.  not  having  been  complied 
with,  the  devise  to  him  and  his  issue  failed,  and  the  devise  over 
to  Israel  took  effect.    6  Halstead,  244. 

A  testatrix  living  in  the  family  of  B.  willed  as  follows:  "I  will, 
(loath  to  offend  by  the  word  "pay,"  the  feelings  of  my  friends, 
whose  kindness  has  been  long  continued,  &c.)  to  B.  and  his  wife 
a  certain  lot  of  land:" — Held,  this  was  a  conditional  devise  forfeit- 
ed by  B.'s  commencing  suit  for  board  of  the  testatrix,  and  that 
the  condition  did  not  affect  a  residuary  bequest  in  the  same  will. 
22  Pick.  480. 

§  8.  A  condition,  in  view  of  the  Common  law,  is  regarded  as 
impossible,  only  when  it  cannot  by  any  human  means  take  effect. 
But  if  it  be  only  in  a  high  degree  improbable,  and  such  as  it  is 
beyond  the  power  of  the  obligee  to  effect,  it  is  not  then  deemed 
impossible.    2  Story's  Eq.  Jur.  S.  1305— See  1  Salk.  170. 

§  9.  Where  there  is  a  devise  over  on  non-performance,  the  es- 
tate of  the  first  devisee  will  be  absolute,  and  would  take  the  prop- 
erty from  the  substituted  devisee,  in  the  event  on  which  the  testa- 
tor has  given  it  to  him.  1  Perk.  Jarm.  808 — reviewing  1  Eq.  cas. 
ab.  112,  pi.  112,  which  set  up  a  different  rule. 

§  10.  Where  the  heir  is  also  the  devisee,  notice  of  the  condi- 
tion to  him  is  necessary,  as  his  entry  is  by  descent,  and  not  by 
devise,  and  he  is  not  therefore  cognizant  of  the  condition.  1 1 
East.  667.  Such  notice  naust  be  proved,  and  will  not  be  infer- 
red.   8  Ad.  &  Ell.  778. 


142  ESTATES  ON  CONDITION.  [CH.  XXll. 

WHEN    PAYABLE? 

§  11.  Where  there  is  a  bequest  of  personalty  to  be  divided  a- 
mong  several,  at  a.  future  period,  no  interests  vests  in  the  legatees 
till  the  division  takes  place.    4  Dana,  547. 

Where  land  is  devised  to  several  devisees  to  be  divided  at  a 
future  period,  (as  when  a  son  becomes  of  age,)  an  interest  in  the 
land  and  its  incidents,  vests  in  the  devisees  at  the  death  of  the 
testator,  lb.  547.  The  rents  of  such  land  accrued  before  the 
testator's  death,  go  to  his  executor.     Ibid. 

The  reason  is,  that  no  title  can  be  made  to  an  estate  depending 
on  a  condition  or  contingency,  without  showing  that  the  condi- 
tion or  contingency  has  actually  come  to  pass.  3  Harr.  (N,  J.)  R. 
27.  Therefore,  where  there  was  a  devise  of  six  slaves,  with  choict 
to  one  of  the  devisees,  on  his  arriving  at  21  years  of  age,  marriage, 
or  death  of  the  mother  to  whom  the  intermediate  use  is  given — 
Held,  that  the  devisee  can  only  select  on  the  happening  of  some 
one  of  the  contingencies  contemplated — 1  B.  Monroe,  274 — and 
an  abatement  of  the  devise  to  make  up  for  a  posthumous  or  pre- 
termitted child,  does  not  alter  the  rule.  lb.  275.  But  see  4  Dana, 
562;  2  Murphy,  140;  1  B.  Monroe.  31. 

But  where  a  legacy  is  given  to  be  divided  and  paid  over  when 
a  certain  event  shall  have  occurred,  as  when  daughters  shall  have 
had  their  last  child,  a  reasonable  certainty  that  the  event  has  hap- 
pened, (though  it  possibly  has  not,)  will  entitle  the  legatees  to 
decrees  of  their  legacy ;  especially  if  they  give  bond  to  indemnify 
the  executors  against  the  possible  contingency  of  an  over-pay- 
ment.   5  Dana's  repts.  73.    (See  Legacy,  post.) 

§  12.  If  A.  direct  that  his  wife  and  daughter-in-law  shall 
jointly  possess  and  occupy  the  plantation,  whereon  he  then  resi- 
ded, during  his  wife's  life,  and  after  her  death,  if  his  daughter- 
in-law  shall  not  then  have  married  again,  but  continue  to  live  in 
a  state  of  widowhood,  then  to  her  use,  till  her  two  children  shall 
arrive  at  the  age  of  21  years,  and  then  her  said  children  to  have 
the  entire  and  absolute  property  thereof — Held,  that  if  the  daugh- 
ter-in-law marry,  before  the  wife  dies,  the  estate  vests  immediate- 
ly in  the  children,  and  is  not  contingent  on  the  daughter-in-law 
continuing  in  a  state  of  widowhood.    7  Men.  388. 


CM.  XXn.J  ESTATES  ON  CONDITION.  143 

§  13.  A  devisee  cannot  hold  any  thing  adversely  to  the  testator 
and  take  a  legacy  under  his  will,  except  on  condition  of  surren- 
dering the  disputed  property.  1  Dana,  203;  1  B.Monroe,  116; 
17  Pick.  303;  1  M'Cord's  Ch.  R.  360.  An  election  to  take  under 
a  will  or  against  it,  is  enforced  only  in  clear  and  well  defined  ca- 
ses— 4  Dana's  R.  3 — and  according  to  some  authorities  it  cannot 
be  enforced  unless  the  devisee's  title  existed  when  the  testator 
died.    4  Dana's  R.  3. 

§  14.  There  is  a  distinction  recognized  between  cases,  in  which 
the  devise  depends  on  the  contingency,  and  those  where  the  di- 
vision depends  on  it — and  so  vice  versa.    6  Dana,  160,  161. 

An  example  of  a  devise  depending  on  a  contingency  is  aiforded 
in  the  case  above  cited,  as  follows :  The  testator  devised  all  his 
estate  so  his  wife,  (including  eleven  negroes,)  during  widowhood, 
and  one-third  if  she  married  again,  (not  saying  how  the  other  two- 
thirds  should  in  that  event  be  disposed  of,  but  directing,  in  another 
item  of  the  will,  that,  "when  the  first  of  his  children  should  marry, 
one-third  to  his  wife,  if  she  should  remain  his  widow,  the  balance 
equally  among  his  children,")  and  some  two  years  after  the  testa- 
tor's death  his  widow  married,  and  ten  years  after  that,  one  (the  first) 
of  his  children  married — it  was  held,  that  by  this  will  the  devise 
to  the  children  did  not  vest  to  take  eifect  on  the  marriage  of  the 
widow,  but  was  contingent  on  the  marriage  of  one  of  them — an 
event  that  might  never  happen ;  consequently,  when  the  widow, 
by  her  marriage,  was  digested  of  two-thirds  of  the  estate,  that  por- 
tion being  slaves,  and  then  undevised,  passed  to  the  administra- 
tor or  executor  of  the  testator  as  assets. 

But  if  the  devise  had  been,  that  on  the  widow's  marriage,  two- 
thirds  should  go  to  the  children,  to  he  divided  among  them,  when 
either  of  them  should  marry,  the  uncertainty  whether  either  of 
them  ever  would  marry,  would  not  have  affected  the  devise,  but 
to'H  that  event,  they  would  have  been  tenants  in  common,  imme- 
diately on  their  mother's  marriage.    6  Dana,  160, 161. 

§  15.  And  'pari  ratione,  where  the  time  of  payment^  and  not 
the  substance  of  the  devise,  depends  on  the  contingency,  the  in- 
terest vests  immediately  on  the  death  of  the  testator.  As,  in  case 
of  a  legacy  payable  to  a  man  at,  or  when  he  attains  the  age  of  %\ 


144  ESTATES  ON  CONDITION.  [CH.  XXU. 

years.  But,  if  the  substance  of  the  devise,  and  not  only  the  time 
of  payment  depends  on  the  contingency,  the  interest  will  be  con* 
tingent.  As  if  a  legacy  be  to  a  man  at,  or  if,  or  when,  he  attains 
the  age  of  21  years.    2  Murphy,  140;  4  Dana,  572. 

In  the  latter  case  the  legacy  will  lapse,  if  the  legatee  die  be- 
fore he  attain  the  age  of  21  years.  In  the  former  case  it  will  not 
lapse.    2  Murphy's  N.  C.  R.  140. 

§  16.  A  legacy  to  an  infant,  to  be  paid  to  him  on  his  majority, 
is  vested,  and  properly  paid  to  a  testamentary  guardian,  appoint- 
ed to  receive  it.  1  B.  Monroe,  31;  4  Dana,  572.  See  "  Legacy," 
post. 

But,  where  a  man  by  his  will  devised  real  estate  to  three  sons, 
adjudged  to  be  illegitimate,  "  if  they  should  live  to  come  of  age," 
it  was  held,  that  during  their  minority  the  property  went  to  the 
heir  at  law.    7  Wend.  47. 

§  17.  It  will  be  observed  by  the  reader,  that  the  distinctions 
created  by  the  Courts  in  relation  to  conditional  devises,  are  often 
«o  nice  and  technical,  as  hardly  to  fall  within  any  general  rule  on 
the  subject.  The  intention  of  the  testator  being  at  last  the  object 
to  be  effected,  the  language  of  the  devise  must,  in  each  case, 
govern,  unless  so  obscure  as  to  compel  the  Courts  either  to  exer- 
cise a  wide  discretion,  or  to  pronounce  the  devise  insensible  and 
void.  It  is  in  such  cases  only  that  the  technical  rules  created  by 
the  foregoing  decisions  are  useful,  as  fettering  judicial  discretion 
\vithin  reasonable  limits.  It  is  only  by  studiously  investigating 
all  the  foregoing  decisions,  that  the  practitioner  or  judge  can 
properly  apply  these  rules,  to  such  new  cases  as  may  arise. 


.J 


CH.  XXIU.]  VOID    DEVISES.  145 


CHAPTER  XXIII. 

VOID    DEVISES WHAT?, 

§  1.  HoWever  inclined  the  judges  may  be  to  effect  the  inten- 
tion of  the  testator,  if  possible,  yet  where  he  makes  the  same  dis- 
position of  his  property  that  the  law  would  have  done,  had  he 
been  silent — or,  where  the  disposition  is  made  in  such  general 
terms  that  his  intention  is  uncertain,  and  cannot  be  collected  from 
the  words  of  the  will — or,  where  he  seeks  to  establish  a  settle- 
ment against  the  reason  and  policy  of  the  law — the  judges  have 
thought  fit  toreject  the  will. 

Therefore,  if  a  man  devise  to  J.  S.  and  his  heirs,  who  is  heir 
at  law,  the  devise  is  void,  and  J.  S.  will  take  by  descent:  Vin. 
abr.  Descent,  (1.)— 6  Mass.  R.  169;  3  Marsh.  230;  2  Binn.  19; 
I  Wash.  109;  I  Call,  258;  I  Leigh,  390;  14  Mass. 88;  Ram.  wills, 
ch.  2,  sec.  4;  Pow.  dev.  421 — otherwise,  if  the  devise  be  of  a 
particular  estate  to  the  heir,  and  a  remainder  over;  for  then,  the 
heir  will  take  by  the  devise.  Watk.  descent,  272.  But  if  there 
be  no  remainder  over  created  by  the  devise,  the  devise  of  the 
particular  estate  to  the  heir  is  void,  because  the  fee  simple  would 
descend  on  him  and  drown  the  particular  estate.  lb.  274,  and 
Ram.  on  wills,  17. 

So,  if  he  devise  lands  to  his  wife  for  life,  with  remainder  to 
J.  S.  (who  is  heir  at  law,)  in  fee — because,  without  such  will,  the 
reversion  would  have  descened  to  J.  S.  in  fee.  Roll,  abr,  626,  (1) 
pi.  2;  I  Black.  R.  187. 

An  appointment  by  will,  is  subject  to  the  same  rule.  I  Bl.  187; 
Sugden  on  Powers,  323;  I  Str.  487;  Watk.  on  descent,  268;  5 
Maul.  &  S.  14;  I  Ld.  Raym.  728;  Com.  R.  72;  I  Bl.  22;  2  Saund. 
8,  d.;  Co.  Litt.  12,  5,  n.  2;  I  Barn.  &  A.  547;  3  Lev.  137-~or 
where  estate  is  charged  with  debts — I  Wash.  109;  Ram.  wills,  18; 
5  Maul.  &  Sel. 

In  case  of  an  executory  devise,  the  heir  at  law  will  taie  by  de- 
scent, till  the  event  happens  on  which  the  devise  depends.    I 
Barn.  &  A.  530;  Amb.  383. 
19 


146  VOID   DEVISES.  [CH.  XXIII. 

1 

If  only  the  quality  of  the  estate  be  altered,  as  if  lands  be  devi- 
sed in  trust,  the  devise  is  not  void.     15  Ves.  363. 

And  wherever  the  devise  gives  a  difftrent  estate  from  that 
which  would  have  descended  to  the  heir-at-law  with  such  devise, 
it  will  be  good  though  given  to  the  heir-at-law,  I  Leigh,  368; 
15  Ves.  371;  Ram.  wills,  18.     • 

As  if  a  man  has  issue  only  two  daughters,  and  devises  land  to 
them  and  their  heirs :  this  is  good,  because  this  devise  makes 
them  joint  tenants  on  which  survivorship  takes  place ;  whereas, 
had  they  taken  by  descent,  they  would  have  been  as  coparceners. 
3  Lev.  127.    See  also  Watk.  on  descents,  271,  274;  2  Ld.  Raym. 

Or,  if  the  devise  be  to  the  heir-at-law,  and  a  stranger.  I  H .  Bl.  1 ; 
ISalk.242;  2 Ld.  Raym. 829;  Ram. wills,  18;  Com. R.  123. 

But  it  would  be  mischievous,  if  every  little  legacy  should  alter 
the  descent;  therefore,  where  a  person  devised  lands  to  his  wife 
for  life,  and  after  her  decease  to  her  next  heir-at-law,  and  his  or 
her  heirs — ^provided,  such  heir  should  pay  $1000  to  such  person 
as  his  wife  should  appoint,  it  was  decided  that  his  heir  took  by 
descent  and  not  by  will.     Com.  R.  72. 

It  is  said  that  the  test  of  the  foregoing  rule,  is  to  strike  out  of 
the  will  the  devise  to  the  heir ;  and  then  if  he  take  exactly  the 
same  estate  as  that  given  him  by  the  will,  he  will  be  in  by  descent 
and  not  by  purchase.    Crosby's  will,  101.* 

§  2.  All  devises  against  the  reason  or  policy  of  the  law,  being 
rejected — therefore  devises  which  tend  to  a  perpetuity,  are  void. 
Therefore  a  devise  to  J.  S.  and  his  heirs,  with  remainder  to  J.  D.  & 
his  heirs,  is  void,  because  the  law  does  not  allow  one  fee,  to  be  limit- 
ed upon  another.  By  the  devise  to  J.  S.  and  his  heirs,  the  devisor 
parted  with  his  whole  estate  to  him,  and  therefore  the  limitation 
over  must  be  void.  Nor,  can  any  man  say  when  the  heirs  of  J.  S. 
will  fail,  and  to  allow  a  remainder  over  on  such  a  distant  contin- 
gency, is  to  perpetuate  the  estate  in  the  family  of  J.  S.  to  support 
a  remainder  which  may  never  vest.     Co.  Litt.  18;  3  Ch.  C.  35^. 

So,  where  the  devise  was  to  A.  and  his  heirs,  and  if  he  should 


*When  a  devise  is  void  by  the  rules  of  law,  the  land  goes  to  the  heir  and  not  to 
the  residuary  devisee — unless  such  intention  appears  on  the  face  of  the  will,  3 
Har.&M«H.333;  IHar.&J.42l. 


CH.  XXlll.]  VOID    DEVISES.  14T 

die  fjDiihout  issue,  living  at  his  death,  then  so  much  of  his  estate  as 
should  remain  undisposed  of  by  A .  should  go  to  B.  the  limitation  over 
was  held  to  be  void,  both  for  uncertainty  and  because  the  power 
to  dispose  of  the  property  gave  an  absolute  property  to  A.  4 
Leigh,  547;  2  ib.  385;  13  John.  R.  537;  15  ib.  169;  16  ib.  537, 
The  same  rule  applies  to  real  and  personal  estate,  16  John.  537; 
3  Ves.  7;  I  Mer.  314  * 

By  the  law  of  England  a  remainder  might  be  limited  on  an  es- 
tate tail.  Fearne,  C.  R.  522.  But  this  rule  does  not  hold  in  the 
United  States,  where  by  operation  of  law  every  estate  tail  is  con- 
verted into  a  fee  simple.  But  a  devise  may  contain  a  limitation 
in  fee,  to  be  substituted  for  a  precedent  devise  in  fee,  on  the  fail- 
ure of  the  latter. 

A  remainder  to  the  child  of  a  person  unborn,  will  not,  under 
any  modifications  be  endured.  Fearne,  C.  R.  502;  2  Cas.  &  op, 
432;  I  Eden.  415,  416.  This  would  be  a  possibility  on  a  possi- 
bility, which  is  never  admitted,  Fearne,  C.  R.  251, 561,  note  [h.] 
II.— 5  Ves.  457;  11  Ves.  257;  2  Ves.  54,  57,  62. 

A  limitation  over  after  an  indefinite  failure  of  issue,  is  too  re- 
mote, and  therefore  void.    4  Rand.  457. 

§  3.  A  bequest  is  void  if  by  possibility  it  may  postpone  the 
vesting  of  the  absolute  interest  in  the  thing  devised,  for  a  longer 
space  than  a  life  or  lives  in  being,  and  21  years,  after  allowing  a 
iew  months  more  for  gestation.  9  Ves.  134;  11  Ves.  283 — See 
also  I  Simons,  173;  I  Saund.  U.&  T.  197;  7  T.R.  100;  2  Sim.  & 
Stu.  465;  1  Russ.  382,  394. 

§  4.  Devises  are  void,  where  the  words  of  the  will  are  so  gen- 
eral and  uncertain  that  the  testator's  meaning  cannot  be  collected 
from  them.  As,  if  one  gave  "all  to  his  mother,"  the  lands  would 
not  pass,  because  it  would  be  severe  and  unreasonable  to  disin- 
herit the  heir,  where  such  intention  is  not  clearly  evident  1 
Swans.  201,  and  note,  203;  Raym.  97. 

•To  determine  the  validity  of  a  limitation  it  must  be  considered  whether  it  is 
an  executory  devise,  or  a  remainder.  If  it  may  take  effect  as  a  remainder,  it  shall 
not  take  effect  as  an  pxecutory  devise.  Fearne,  C.  R.  394;  2  Yeates,  4O0;  3  S. 
&R.441;  1  Watts,  475. 

If  there  be  a  sufficient  freehold  estate  to  support  a  remainder,  it  shall  never  be 
■considered  an  executory  devise,  but  a  contingent  remainder.  2  Sand.  380;  2  BL 
rep. 777;  Doug. 753;  3  T.R.  763;  1  East. 259;  2 Bos. &  Pull. 289,  &  ib.  324. 


148  VOID    DEVISES.  [CH.  XXIU. 

But  the  will  must  be  incapable  of  any  clear  meaning,  and  not 
merely  irrational  and  absurd.  2  Sim.  &  Stu.  295;  3  Halst.  90. — 
And— 

§  5.  1st.  A  will  may  be  void  for  the  uncertainty  of  the  thing 
devised.    9  Sim.  503,  524. 

2d.  By  the  uncertainty  of  the  person  to  take — Abr.  Eq.  212; 

4  Paige,  271;  S.  C.  1  Edw.  189— As,  if  there  be  two  persons  to 
whom  parts  of  the  description  given  of  the  devisee  respectively 
apply,  it  becomes  a  question  which  is  intended,  and  if  their 
claims  are  nearly  equal,  the  devise  is  uncertain  and  void.   Ibid. 

Testator  devised  all  his  real  and  personal  estate,  subject  to  his 
debts  and  other  charges,  to  his  wife  for  life,  and  after  her  death, 
the  same  should  be  divided  according  to  the  statute  of  distribu- 
tions in  that  case  made  and  provided — Held,  the  devise  over  of 
the  real  estate  was  not  sufficient  to  designate  the  persons  intend* 
ed  to  take,  and  was  therefore  void.  3  B.  &  C.  825;  Vern.  362; 
3  Bro.  P.  C.  454;  2  Mer.  348;  3  East.  172;  1  Swanst.  201;  1  Ves. 
&  B.  422;  11  Mass.  419;  2  Russ.  &  Myl.  107;  6  Har.  &  John.  1; 

5  Har.  &  John.  399. 

§  6.  A  will  may  become  void  by  death  of  the  devisee,  in  the 
life-time  of  the  devisor.  As,  if  land  be  devised  to  A.  and  his 
heirs,  and  A.  dies  before  the  testator,  the  heirs  of  A.  take  nothing ; 
for  they  were  only  named  to  designate  the  quantity  of  the  estate 
devised  to  A.  1  Str.  25,  445;  1  P.  W.  397;  Doug.  344;  2  Vern. 
722;  1  Bro.  Ch.  R.  319;  7  Mass.  R.  86;  5  Binney,  118;  3  Yeates. 
34. 

And  a  new  publication  of  the  will  after  A.'s  death,  would  not 
make  such  a  devise  good.  4  T.  R.  601 ;  1  Mod.  267;  2  Mod.  313; 
11  East.  551,  in  note. 

But  in  case  of  a  charitable  bequest,  the  death  of  the  devisee 
does  not  avoid  the  bequest.  Prest.  abst.  238.  Chancery  would 
treat  the  heir  as  trustee — Ibid. — Otherwise,  if  the  cestuy  que  use 
die.    3  Lomax,  dig.  112. 

In  case  of  a  lapsed  devise  in  fee,  the  estate  will  not  go  to  the 
residuary  devisee,  but  to  the  heir-at-law.  Ram.  wills,  262;  For- 
tesc.  182,  184.    This  rule  depends  on  these  three  propositions: 

1st,  The  intent  of  the  testator  ought  to  be  taken  as  things 
stood  at  his  will. 


CH.  XXUl.]  VOID   DEVISES.  149 

2d.  The  testator  in  his  will  having  given  away  all  his  interest 
in  certain  lands,  so  that  if  he  were  to  die  immediately  nothing 
would  remain  undisposed  of,  he  could  not  intend  to  give  any  in- 
terest in  those  lands  to  the  residuary  devisee.  WilUis'  R.  293;  3 
Lomax,  118. 

3d,  The  intent  of  the  testator,  when  not  illegal,  ought  always 
to  govern.     Ibid. 

In  this  respect  a  legacy  differs  from  a  devise ;  for  in  a  like  case, 
a  legacy  vC^ill  pass  to  the  residuary  legatee,  if  specific  or  pecunia- 
ry. 4  Kent's  Com. 541;  Ram.  wills, 262;  lDana,R.207;  4Paige, 
115.  For  a  will  operates  on  all  the  personal  property  of  the  tes- 
tator owned  at  his  death.     Ibid. 

But  if  there  be  four  residuary  legatees,  and  two  of  them  die  in 
the  life-time  of  the  testator,  their  shares  will  go,  as  in  case  of  in- 
testacy. 2  Leigh,  650;  3  Lomax,  118;  5  Pick.  528,  537,  538;  2 
How.  337;  2  Sm.  &  M.  30, 60;  1  Sm.  &  M.  Ch.  R.  589;  1  Dana, 
206. 

The  distinction  in  England,  by  which  in  case  of  a  lapsed  de- 
vise, the  heir  takes;  but,  in  case  of  a  void  devise,  the  residuary 
devise  may  take,  (4  Kent,  525-6) — has  been  overruled  in  this  coun- 
try, because,  the  testator  is  presumed  never  to  have  intended  that 
a  void  specific  devise  should  fall  into  the  residuum.  Ibid. — and 
6  Conn.  R.  292.  A  devise  void  for  uncertainty  of  legatee,  will  go 
to  him  to  whom  testator  gives  all  his  estate  not  before  disposed  of. 
5  Pick.  528,  537,  538.  So,  if  he  dies  or  becomes  incapable  be- 
fore the  making  of  the  will.     Ibid. 

But  where  the  devise  was  on  a  condition  subsequent,  and  also 
a  contingent  interest  depending  on  the  failure  of  that  condition, 
the  residuary  devisee  was  held  to  be  entitled  to  the  estate  in  pre- 
ference to  the  heir — 5  Pick.  R.  528 — because  the  specific  interest 
had  not  been  contingently  devised.    4  Kent,  525. 

But  wherever  the  law  has  been  so  altered  by  statute,  as  to  make 
devises  operate  on  all  the  real  estate  owned  by  the  testator  at  his 
death,  (see  ante,  page  104,  105,)  it  may  destroy  the  application 
of  these  distinctions,  and  give  consistency  and  harmony  to  the 
testamentfiry  disposition  of  both  real  and  personal  estate.  4  Kent, 
525-6. 


160  VOID    DEVISES.  [CH.  XXIII. 

And  if  an  estate  is  devised  to  one,  and,  in  case  he  dies  with' 
out  issue,  to  another,  and  the  first  devisee  dies  in  the  life-time  of 
the  testator,  the  devise  does  not  lapse,  but  passes  to  the  second 
devisee.  1  Dana,  43;  6  Dana,  52.  And  if  it  be  plain  that  the 
intention  of  the  testator  was,  that  if  the  devisee  died,  his  heir  or 
executor  should  take  the  subject  of  the  legacy,  it  will  not  lapse, 
but  the  executor  or  heir  will  take  it,  not  as  such,  but  by  the  will. 
6  Dana,  52-3.    See  also  3  Bibb,  209. 

By  statute  of  Mississippi,  it  is  provided  that,  "whenever  any 
estate  of  any  kind  shall  or  may  be  devised  or  bequeathed  by  the 
last  will  and  testament  of  any  testator  or  testatrix,  to  any  person 
bdng  a  child  or  other  descendant  of  such  testator  or  testatrix,  and 
such  devisee  or  legatee  shall,  during  the  life-time  of  such  testator 
or  testatrix,  die  testate  or  intestate,  leaving  a  child  or  children, 
or  one  or  more  descendants  of  a  child  or  children,  who  shall  sur- 
vive such  testator  or  testatrix — in  that  case  such  devise  or  legacy 
to  such  person,  so  situated  as  above  mentioned,  and  dying  in  the 
life-time  of  the  testator  or  intestate,  shall  not  lapse;  but  the  estate 
so  devised  or  bequeathed  shall  vest  in  such  child  or  children, 
descendant  or  descendants  of  such  legatee  or  devisee,  in  the  same 
manner  as  if  such  devisee  or  legatee  had  survived  the  testator  or 
testatrix,  and  had  died  unmarried  and  intestate."  How.  &  H. 
ch.  36,  p.  386. 

§  7.  A  devise  may  also  be  void  for  repugnancy^  or  at  least  so 
much  thereof  as  is  repugnant  to  the  principal  devise — as,  if  a 
condition  be  annexed  to  a  devise,  that  the  person  who  may  have 
the  right,  is  to  procure  an  act  of  the  Assembly  for  the  change  of 
his  name,  "together  with  the  taking  of  an  oath  before  he  has  pos- 
session, that  he  will  not  make  any  change,  during  his  life  in  this 
my  will,  relative  to  my  real  property."  Such  a  condition  is  re- 
pugnant to  the  nature  of  the  estate,  and  is  therefore  void.  9  Wheat. 
325 — So  of  a  devise  in  fee  with  a  condition  not  to  alienate — 8 
Mass.  3 — So,  if  there  be  an  executory  devise  after  a  devise  with 
absolute  power  of  disposition  in  the  first  devisee.  3  Bro.  P.  C.  314; 
1  Ves.  9;  8  ib.  248;  5  Mass.  500;  10  John.  19;  2  Caine's  R.  346; 
13  John.  537;  15  John.  169;  16  ib.  537;  4  Leigh,  547;  2  ib.  386; 
1  Mer.  314;  1  Jac.  &  Walk.  154. 

Therefore,  a  condition  exempting  such  devise  from  liability  for 


CH.  XKIU.]  VOID  DEVISES.  151 

the  debts  of  the  donee,  would  be  void,  though  given  to  trustees 
for  his  use.  18  Ves.  439;  1  Rose,  197;  1  Sim.  66;  1  Russ.  &  Myl. 
395;  6  Sim.  624;  1  Perk.  Jarm.  820,  et  seq. 

A  condition  annexed  to  a  bequest  of  leasehold  property,  that 
the  legatee  assign  part  to  a  charity,  is  void.    6  Mad.  32. 

§  8.  In  general  a  condition  annexed  to  a  devise  for  life,  that  it 
shall  be  divested  by  the  devisee's  marriage,  is  considered  as  in- 
tended only  in  terrorem,  and  the  condition  i^  therefore  void — 6 
Mass.  R.  169 — unless  the  particular  bequest  is  expressly  given 
over,  so  as  to  create  an  interest  in  another  person,  to  take  effect 
immediately  on  the  marriage.  Ibid,  See  also  1  Perk.  Jarm.  837, 
note  [a.]  A  condition  that  a  devise  shall  be  divested  on  the  mar- 
riage of  the  devisee  or  legatee,  is  void — because  in  restraint  of 
marriage.    21  Pick.  42;  8  Mass.  3  &  6;  6  ib.  169. 

But  a  condition  requiring  legatee  to  ask  consent — 2  Vern.  573; 
2  x^tk.  616;  10  Ves.  230 — or  that  a  widow  shall  not  marry — Amb. 
209 — (but  see  6  Mass.  169) — or  that  an  annuity  shall  last  during 
widowhood — 2  Vern.  308;  1  Story,  Eq.  Jur.  S.  285 — or  to  marry 
or  not  marry  T. — 1  Vern.  19;  IB.  C.  C.  55 — is  a  valid  condition. 
So,  a  condition  prescribing  due  ceremonies  and  place  of  marriage, 
is  good — 1  Moll.  611 — or  limiting  time  to  21  years  of  age,  or  any 
reasonable  age — 3  Ves.  89 — provided  it  be  not  used  as  a  cover  to 
restrain  marriage  generally — 2  B.  C.  C.  488;  3  Ves.  89;  1  Story, 
Eq.  Jur.  283 — all  cited  in  1  Perk.  Jarm.  837,  &  notes. 

§  9.  At  Common  law,  a  devise  limited  to  take  effect  on  the 
death  of  the  first  taker  without  issue,  was  void  for  remoteness — 
as  it  could  not  take  place  till  after  an  indefinite  failure  of  issue. 
See  ante  page  133,  sec.  5. 

It  is  a  settled  principle,  that  wherever  an  estate  is  devised  to 
one  generally,  with  remainder  over,  on  a  limited  contingency,  as 
upon  his  dying  under  21  years  of  age,  the  first  devise  shall  take 
a  fee  simple.  For,  if  the  intent  were  to  give  only  a  life  estate, 
with  a  remainder  over,  there  would  be  no  reason  for  limiting  to 
death  under  age.     1  Gallis,  C.  G.  R.  454;  1  Mason's  C.  C.  R.  234. 

But  there  are  cases  in  which  the  ordinary  import  of  words  is 
restrained  to  carry  into  effect  the  apparent  intent  of  the  testator : 
where,  therefore,  A.  devises  to  one  of  his  heirs  and  upon  an  inde- 
finite failure  of  issue,  a  remainder  over,  the  word  heirs  is  restrain- 


152  VOID    DEVISES.  [CH.  XXllI. 

ed  to  the  heirs  of  his  body,  in  order  to  give  effect  to  the  remain- 
der over,  which,  otherwise,  would  be  too  remote  and  void.  1 
Gallis,  C.C.R.454. 

So,  if  the  devise  be  to  one  and  his  heirs,  and  upon  an  indefi- 
nite failure  of  heirs,  to  one  who  might  be  an  heir  to  the  first  de- 
visee, his  estate  is  restrained  to  a  fee  tail,  for  he  could  not  be 
without  heirs  while  the  second  devisee  existed ;  and  therefore  it 
is  plain,  that,  by  the  word  "  heirs,"  the  testator  meant  "  heirs  of 
his  body."  But  if  the  devise  over  had  been  to  a  stranger,  the 
general  meaning  of  the  word  "  heirs,"  would  prevail,  and  the  es- 
tate being  too  remot&,  would  be  void  as  an  executory  devise.  (In 
Mississippi,  it  would  in  either  case,  under  our  statute  be  a  fee 
simple.)  Ibid.    See  also  2  Cowen,  333;  4  Wend.  277. 

§  10.  And  although  the  general  rule  is,  that  the  words  "dying 
without  issue,"  in  reference  to  freehold  estates  are  to  be  constru- 
ed as  meaning  an  indefinite  failure  of  issue,  unless  there  be  some- 
thing in  the  context  that  manifestly  confines  the  sense  to  a  differ- 
ent period  of  time,  yet  in  respect  to  terms  of  years,  and  leasehold 
estates.  Courts  are  liberally  inclined  to  limit  the  words  "dying 
without  issue,"  to  the  time  of  the  person's  death.  But  in  regard 
to  the  freehold,  the  rule  has  been  rigidly  enforced,  unless  there 
were  strong  circumstances  to  repel  it.  3  Wash.  C.  C.  R.  369;  12 
Wheat.  568.* 

§  11.  A  limitation  over  in  a  devise,  as,  "  I  give,  devise  and  be- 
queath unto  my  six  sons,  &c.  all  my  real  and  personal  estate,  share 
and  share  alike,  &c. — and  if  any  of  the  above  six  should  happen 
to  die  without  heirs,  then  his  or  their  share  to  fall  to  the  survivors 
of  the  above  named  sons,  share  and  share  alike" — is  good  as  an 


*A.  devised  to  his  wife  until  his  son  P.  should  attain  the  age  of  21  years,  and 
after  that  his  son  P.  should  enter  into  possession  of  a  moiety,  and  added,  "I  do 
hereby  devise  and  dispose  of  the  whole  of  the  reversion  of  the  aforesaid  and  real 
estate  to  my  son  P.  to  be  and  to  remain  to  him  and  his  heirs  and  assigns  forever; 
but  if  my  son  P.  should  die  before  ke  attain  the  age  of2[  years,  or  without  lawful 
issue,  then  the  aforesaid  devised  premises,  &,c.  to  descend  to  my  male  heirs  in  fee 
simple — Held,  P.  took  an  indefeasible  estate,  in  fee  simple  on  his  attaining  the 
age  of  21  years. — 3  Mason's  C.  C.  R.  208.  *'0r"  will  be  construed  and,  so  as  to 
defeat  the  second  devise,  either  by  the  first  devisees  attaining  age  or  having  issue. 
And  the  reason  is,  that  otherwise,  if  the  first  devisee  should  die  under  age,  altho* 
bavins  issue  living,  the  estate  to  him  would  be  defeated  contrary  to  the  manifeat 
intention  of  the  testator.  1  Mason's  C.  C  R.  234.  See  also  2  Leigh,  1 19;  3  ib. 
64;  10  Conn.  448. 


CH.  XXlll.]  VOID    DEVISES.  153 

executory  devise,  to  vest  in  the  surviving  brothers  the  share  of 
one  of  the  devisees,  on  his  "dying  without  issue."  4  Wend.  277; 
11  John,  R.  337;  1  ib.  440;  16  ib.  382;  10  ib.  12;  2S.&R.470; 
26  Wend.  229. 

§  12.  But  an  executory  devise  must  vest  during  lives  in  being, 
or  21  years  and  a  fraction  after.  15  Pick.  104;  8  Mass.  3,  37,  38. 
See  also  Perk.  Jarm.  221 ,  &  note  1,  citing  8  Paige,  104;  14  Wend. 
265,  &  5  Paige,  318;  16  Wend.  61;  20  ib.  564;  1  Hoff.  344;  4 
Kent,  (5th  ed.)  271,  et  seq. 

§  13.  A  possible  addition  to  the  period  of  gestation,  to  a  life 
and  twenty-one  years,  occurs  in  the  ordinary  case  of  a  bequest 
to  A.  (a  person  of  the  male  sex,)  for  life,  and  after  his  death  to 
such  of  his  children  as  shall  attain  the  age  of  21  years,  or  indeed, 
in  case  of  a  devise  or  bequest,  simply  to  the  children  of  A.  (a 
male,)  who  shall  attain  majority,  though  not  preceded  by  a  life 
interest.  In  either  case,  A.  may  die  leaving  a  wife  enceinte,  and 
as  such  child  would  not  acquire  a  vested  interest  until  his  major- 
ity, the  vesting  would  be  postponed  till  a  period  of  21  years  be- 
yond a  life  in  being,  with  the  addition,  it  might  be,  of  nine  or  ten 
months.  And  if,  we  add  the  circumstance,  that  the  parent  were 
an  infant  en  ventre  sa  mere,  at  the  testator's  decease,  there  would 
be  gained  a  double  period  for  gestation.  To  treat  the  period  of 
gestation  as  an  adjunct  to  the  lives,  is  not  quite  correct.  It  is 
more  proper  to  say,  that  the  law  regards  the  child  en  ventre  sa 
mere,  as  a  "  life  in  being." 

The  application  of  this  rule  instantly  shows,  whether  an  exe- 
cutory interest  to  arise  on  an  indefinite  failure  of  issue  of  any 
person  living  or  dead,  is  void  for  remoteness.  I  Perk.  Jarm.  223, 
et  seq.  citing  3  J.  J.  Marsh.  91;  I  Hill.  Ch.  268;  5  Munf.  457;  6 
ib.  114;  I  Dev.  &  Batt.  Eq.  69;  I  Bailey,  Eq.  48, 390;  5  Day  5, 17; 
11  Wend.  259;  26  ib.  229— and  other  authorities. 

§  14.  And  where  a  devise  is  void  for  remoteness,  all  limita- 
tions ulterior,  or  expectant  on  such  remote  devise,  are  also  void. 
H.  Black,  358;  I  Perk.  Jarm.  242. 

§  15.  In  Mississippi,  it  is  enacted  that  "any  person  may  make 
a  devise  to  a  succession  of  donees  then  living,  and  the  heir  or 
heirs  of  the  body  of  the  remainder-man,  and  in  default  thereof, 
20 


154  VOID    DEVISES.  [oh.  XXUl. 

to  the  right  heirs  of  the  donors,  in  fee  simple.    H.  &  H.  ch.  36, 
sec.  24,  p.  348 — See  ante  page  122,  sec.  2. 

It  is  also  further  enacted,  that  every  contingent  limitation  in  a 
idUI  or  deed,  made  to  depend  on  the  dying  of  any  person  without 
heirs,  or  heirs  of  the  body,  or,  without  issue,  or  issue  of  the  body, 
or  without  children  or  offspring  or  descendants,  or  other  relative, 
shall  be  held  and  interpreted  a  limitation  to  take  effect  when  such 
person  shall  die,  not  having  such  heir  or  issue,  or  child,  or  off- 
spring, or  descendant,  or  other  relative,  (as  the  case  may  be,)  liv- 
ing at  the  time  of  his  death,  or  born  to  him  within  ten  months 
thereafter,  unless  the  intention  of  such  limitation  be  otherwise 
expressly  and  plainly  declared  on  the  face  of  the  deed  or  will 
creating  it."    H.  &  H.  ch.  36,  sec.  34,  p.  348. 

The  above  statute  fixes  the  lawful  period  of  limitation  to  be  a 
life  or  lives  in  being,  and  twenty-one  years  and  ten  months  there- 
after. 

§  16.  Devises  are  also  void,  when  in  contravention  or  violation 
of  the  Constitution  and  law  of  the  State. 

By  Constitution  of  Mississippi,  sec.  1,  title  "Slaves,"  H.&H.34, 
it  is  provided  that  the  Legislature  shall  have  power  to  pass  laws 
to  permit  the  owners  of  slaves  to  emancipate  them,  saving  the 
rights  of  creditors  and  preventing  them  from  becoming  a  public 
charge.    Art.  VII. — General  provisions. 

By  act  of  the  Legislature,  it  was  not  lawful  for  the  owner  or 
owners  of  slaves  to  emancipate  them  or  any  of  them,  unless  by  his 
or  her  last  will  and  testament,  or  by  any  other  instrument  in  writ- 
ing, under  his,  her  or  their  hand  and  seal,  attested  and  proved, 
in  the  manner  required  by  law,  by  two  credible  witnesses,  or  the 
instrument  of  writing  acknowledged  by  the  party  or  parties,  in 
the  Court  of  the  county  or  corporation  where  he,  she  or  they  re- 
sided ;  and  also  prove  to  the  satisfaction  of  the  General  Assembly, 
that  such  slave  or  slaves  have  done  and  performed  some  merito- 
rious act,  for  the  benefit  of  such  owner  or  owners,  or  some  distin- 
guished service  for  the  benefit  of  the  State ;  and  such  last  will  and 
testament,  or  other  instrument  in  writing,  shall  not  have  validity, 
until  the  same  shall  be  sanctioned  by  an  act  of  the  General  As- 
sembly, nor  until  the  owner  or  owners  shall  have  complied  with 


CH.  XXUl.]  VOID   DEVISES.  155 

the  conditions,  which  may  be  specified  in  such  act :  and  provided 
also,  in  all  such  cases  of  emancipation  by  any  last  will  and  testa- 
ment, the  widow  shall  be  entitled  to  her  right  of  dower  in  the 
slave  or  slaves,  whereof,  &c. — (See  title  Dower,  post.) — How.&  H. 
ch.lljsec.47,  p.  166. 

In  the  case  of  Luckey  et  al.  vs.  Dykes,  2  S.  &  M.  60,  and  Hinds 
vs.  Brazeale,  2  How.  837,  decided  by  the  Supreme  Court  of  Mis- 
sissippi, the  construction  of  this  statute  came  in  question.  The 
latter  case  was  as  follows : 

B.  carried  a  negro  woman  and  her  son  John  to  Ohio,  for  the 
purpose  of  emancipating  them  and  bringing  them  back.  He  ac- 
cordingly executed  a  deed  of  emancipation  while  in  Ohio,  and 
returned  with  the  negroes  to  this  State. 

By  his  will  B.  recited  the  deed  of  emancipation  and  devised 
his  property  to  the  said  John,  acknowledging  him  to  be  his  son — 
it  was  held,  that  the  act  of  emancipation  depended  on  the  laws 
of  this  State,  and  being  in  fraud  of  such  law,  was  void.  See 
also  2  N.  Car.  Law  Repository,  557;  8  Peters,  285;  2  Wheat.  148; 
8  Peters,  50. 

In  the  case  of  Ross'  will,  the  testator  directed,  that  his  slaves 
should  be  sent  by  his  executors  to  Liberia,  there  to  remain  free, 
and  the  Supreme  Court  held  this  to  be  a  valid  devise.  Ross  vs. 
Vertner — 5  How.  305.  As  it  is  not  against  the  policy  of  the  State 
of  Mississippi,  for  the  owner  of  slaves  to  send  them  out  of  the 
State  for  emancipation,  he  may  direct  it  to  be  done  by  will.  IMd. 

The  reason  of  the  distinction  between  the  foregoing  cases,  is, 
that  in  the  former  case,  the  attempted  emancipation  was  intend- 
ed to  take  effect,  ultimately,  within  this  State,  producing  the  very 
evil  it  was  the  object  of  the  statute  to  prevent.  In  the  latter  case, 
the  act  of  emancipation  was  intended  to  take  effect  abroad.  In 
the  words  of  the  Court — "  If  the  will  in  this  case  provided  for  the 
manumission  of  the  slaves  in  this  State,  it  would  unquestionably 
be  opposed  to  the  principles  of  the  statute,  and  could  not  be  en- 
forced. It  would  frustrate  the  policy  of  the  statute,  which  is  op- 
posed to  an  augmentation  of  free  negroes  in  this  State — a  result 
hazardous  to  the  safety  of  the  owners  of  slaves,  and  the  security 
of  public  peace."    But  "the  act  of  transporting  the  slaves  to  Afri- 


156  VOID   DEVISES.  [CH.  XXUL 

ca,  there  to  remain  free,  does  not  seem  to  be  an  act  of  mapumission 
within  the  meaning  of  the  statute,  or  its  spirit  or  policy.  No 
question  has  been  made  of  the  power  of  the  testator  to  carry  his 
slaves  to  Africa  in  his  life-time.  The  power  to  have  done  so,  re- 
sulted to  him  as  owner  of  the  slaves  from  his  acknowledged  right 
of  absolute  dominion.  Having  this  power  himself,  it  was  certain- 
ly competent  for  him  to  employ  another  to  do  the  same, thing, 
or  to  direct  it  to  be  done  by  his  executors,  who  are  trustees  to  car- 
ry his  intentions  into  effect."  See  also  cases  cited,  2  Call,  319, 
357;  8  Louis'  Rep.  475;  11  ib.499;  ib.  410;  6  Yerg.  119;  7  ib. 
552;  and  2  Hill's  (S.  C.)  Ch.  R.  305. — a  case  analagous  to  the  case 
of  Ross  vs.  Vertner.  See  also  the  elaborate  opinion  of  Chancellor 
Buckner,  in  1  Freeman's  Ch.  R.  597 — affirmed  in  case  of  Ross 
vs.  Vertner,  above  cited. 

In  the  case  of  Shattuck  vs.  Young — 1  S.  &  M.  30 — B.  by  will, 
directed  that  her  executor  should  represent  to  the  Legislature  the 
meritorious  services  of  her  negro  slave,  and  should  procure  from 
the  Legislature  an  act  for  his  emancipation,  and  should  take 
charge  of  the  slave  and  give  him  the  benefit  of  his  own  labor, 
until  he  should  procure  the  passage  of  the  act — Held,  that  the 
testatrix  did  not  thereby  profess  to  emancipate  the  slave,  and  that 
clause  of  the  will  was  not  void.  The  Court  said — "  This  clause 
does  not  propose  to  emancipate,  but  only  to  lay  the  foundation  for 
a  legal  emancipation  by  an  act  of  the  Legislature.  It  is  compe- 
tent for  the  Legislature  so  to  emancipate,  and  there  is,  therefore, 
nothing  in  the  bequest  which  would  authorize  us  to  declare  it  void; 
but  it  would  be  defeated  by  the  refusal  of  the  Legislature  to  pass 
the  act.  As  it  was  discretionary  with  the  Legislature  to  emanci- 
pate or  not,  on  a  sufficient  showing,  the  executor  was  entitled  to  a 
reasonable  time  to  make  the  application,  and  the  right  of  the  re- 
siduary legatee  would  necessarily  be  postponed  until  the  will  of 
the  Legislature  could  be  known.  That  portion  of  the  will  which 
authorized  the  executor  to  take  charge  of  the  negro  and  give  him 
the  benefit  of  his  labor,  cannot  be  construed  as  a  perpetual  trust, 
even  if  it  would  have  been  competent  for  the  testatrix  to  have 
created  such  a  trust,  with  the  view  of  the  continuation  of  the  negro 
in  this  State.   It  was  at  most  a  trust  for  a  limited  time,  its  duration 


CH.  XXlll.]  VOID   DEVISES.  157 

being  limited  by  the  determination  of  the  Legislature;  as  it  was 
for  the  purpose  of  procuring  the  act,  and  until  it  should  be  done, 
that  the  executor  was  invested  with  the  power." 

In  such  case  should  the  Legislature  refuse  to  pass  the  act  of 
emancipation,  the  slave  would  fall  into  the  residuum.     Ibid. 

By  act  of  1842,  ch.4,  sec.  2,  it  is  now  provided,  that  in  all 
cases,  where  a  slave,  emancipated  without  this  State,  shall  after- 
wards be  found  in  this  State,  such  slave  shall  forfeit  the  pro- 
tection of  the  person  emancipating  him,  and  be  subject  to  be  pro- 
ceeded against  as  a  free  negro — provided  such  emancipation  oc- 
curred after  1842.  And  by  sec.  10th  of  same  act,  it  is  provided, 
"that,  hereafter,  it  shall  not  be  lawful  for  any  person,  by  last  will 
or  testament,  to  make  any  devise  or  bequest  of  any  slave  or  slaves 
for  the  purpose  of  emancipation,  or  to  direct  any  slave  or  slaves  to 
be  removed  from  this  State  for  the  purpose  of  emancipation  else- 
where. And  in  all  cases  of  wills  heretofore  made  and  admitted 
to  probate  within  this  State,  whereby  any  slaves  have  been  di- 
rected to  be  removed  from  this  State  for  the  purpose  of  emancipa- 
tion elsewhere,  or  whereby  any  slave  or  slaves  have  been  devised 
or  bequeathed  in  secret  trust  for  such  purpose — unless  such  slaves 
shall  be  removed  from  the  State  within  one  year  after  the  passage 
of  this  act,  it  shall  not  be  lawful  for  the  executor  or  executors  of 
such  last  will  and  testament,  or  the  person  or  persons  having  pos- 
session of  such  slave  or  slaves,  under  the  provisions  of  such  will, 
so  to  remove  such  slave  or  slaves ;  but  the  same  shall  descend  to 
be  distributed  among  the  heirs-at-law  of  such  testator,  or  be  oth- 
erwise disposed  of  according  to  law,  in  the  same  manner  as  if 
such  testator  died  intestate:  Provided,  however,  that  if  such 
executor  or  other  person  having  such  possession,  shall  be  pre- 
vented or  restrained  within  the  said  term  of  one  year,  from  such 
removal,  by  injunction  or  other  legal  process,  or  otherwise,  the 
time  during  which  such  restraint  shall  continue  or  exist,  shall  not 
be  taken  or  computed  as  any  part  of  said  time  of  one  year; — and 
provided  further,  it  shall  be  competent  for  any  person  or  persons 
being  the  owner  of  any  slave  or  slaves,  to  direct  his,  her  or  their 
executor  or  executors,  to  emancipate  any  such  slave  or  slaves  for 
meritorious  services,  rendered  to  his,  her  or  their  owner  or  owners, 
upon  such  conditions  as  shall  be  prescribed  by  the  Legislature  of 


158  CHARGES  ON  REAL  ESTATE.  [CH.  XXIV. 

the  State,  to  which  such  last  will  and  testament  shall  be  referred 
for  approval  before  any  such  devise,  bequest,  or  direction,  shall  be 
carried  into  effect."     Act  of  February  26,  1842. 

§  17.  A  devise  to  a  slave  is  void,  because  a  slave  is  incapable 
of  taking  or  holding  property.    2  S.  &  M.  30. 

A  will  may  also  become  inoperative  by  the  refusal  of  the  de- 
visee to  claim  the  devise.  This  disclaimer  must  be  by  some  un- 
equivocal act.  Whether  a  verbal  or  written  renunciation  is  re- 
quisite, has  been  disputed.  Judge  Kent,  thinks  the  case  would 
be  governed  by  circumstances.  3  Lomax,  117,  citing  3  B.  &  A. 
31;  6  Barn.  &  Cress,  112;  2  Prest.  Abstr.  227-28. 

§  18.  A  will  may  be  also  rendered  void  by  fraud  or  imposition 
practised  on  the  testator,  or  by  his  insanity.  3  Lomax,  110;  1 
Story's  Eq.  412,  194. 


CHAPTER  XXIV. 


CHARGE    ON     REAL     ESTATE. 


§  1.  Many  words  which  in  a  deed  do  not  constitute  a  condi- 
tion, make  a  condition  in  a  will — As,  if  lands  be  devised  to  one 
to  pay  $100  to  J.  S. — or  paying  $50  to  J.  N. — this  amounts  to  a 
condition.  I  Bac.  abr.  Tit.  Condition,  B.;  3  Peter's  U.  S.  R.  346; 
3T.R.  41. 

§  2.  A  will  charging  land  must  have  the  same  solemnities  as 
a  will  devising  lands.     14  Mass.  421. 

Whenever  a  testator  expresses  an  intention  that  all  his  debts 
shall  be  paid,  or  devises  all  his  property  subject  to  the  payment 
of  debts,  these  words  both  in  law  and  equity,  operate  to  charge 
his  real  estate  with  his  debts.    3  Lomax,  264;  2  John.  Ch.  R.  614. 

As,  if  testator  direct  all  his  debts  to  be  paid,  and  devise  all  his 
property  to  A.  B.— Prec.  Ch.  264, 430;  2  Munf.  453— or,  if  a  man 
devise  as  follows: — "As  to  all  my  worldly  estate,  my  debts  being 


CM.  XXIV.]  CHARGES  ON  REAL  ESTATE.  159 

first  satisfied,  I  devise  the  same  as  follows" — the  land  would  be 
charged,  though  the  word  first  had  been  omitted.  2  Vern.  690; 
3  P.  Wms.  91.  A  direction  that  testator's  grand-children  shall  be 
raised  and  educated,  raises  a  charge  on  the  estate  during  minority 
— 1  N.  Car.  R.  399 — or  where  a  sale  is  necessary  to  effect  the  tes- 
tator's object.  23  Pick.  163.    See  also  3  Ves.  738, 545;  6  Call.  308; 

1  Leigh,  465;  6  Munf.  163;  11  Ves.  186;  I  Mad.  474. 

And  the  charge  is  not  restricted  by  the  subsequent  selection  of 
part  of  his  estate  to  be  sold  for  the  purpose  of  paying  the  debts 
and  legacies.    Gilm.  174;  3  Lomax,  266,  citing  4  Bac.  ab.  285,  6; 

2  Ves.  568.  But  in  England,  the  estate  so  selected  must  be  first 
subjected — 8  Ves.  295 — where  also  there  is  a  general  charge  on 
testator's  land,  and  devise  of  a  particular  estate  to  any  person,  the 
devisee  takes  subject  to  the  charge,  only  if  the  residuum  be  in- 
sufficient.   Ibid. 

A  clause  directing  payment  of  all  the  testator's  debts,  is  not  a- 
lone  sufficient  to  charge  real  estate,  specifically  devised ;  for  there 
the  intention  must  be  clearly  expressed.  2  Ves.  328;  Kirby's  Conn. 
R.  284;  9  Pick.  561.  Evidence  de-hors  is  not  admissible  to  prove 
an  intention  to  exclude  aid  of  personal  estate.    6  Cowen,  333. 

And  to  charge  real  estate  even  against  the  residuary  legatee,  a 
clear  intention  of  the  testator  must  be  manifest  from  the  will,  that 
devisee  shall  take  subject  to  such  legacy.  10  Wheat.  204;  8  Conn. 
1;  2  John.  Ch.  R.  614.  And  if,  after  the  date  of  his  will,  the  tes- 
tator convert  personal  into  real  estate,  so  as  not  to  leave  personal- 
ty sufficient  to  pay  debts  and  legacies,  the  real  estate  is  not  charge- 
able with  such  legacies.  Ibid.  But  if  a  charge  is  made  in  favor 
of  debts  and  legacies  in  the  same  clause,  both  are  to  be  paid  in 
the  same  way.    I  Mer.  233;  &  see  17  Ves.  468;  I  Leigh,  477. 

§  3.  But  if  the  general  prefatory  words  or  general  expressions 
are  qualified — as,  "I  direct  all  my  just  debts,  &c.  to  be  paid  by 
my  executors,"  and  the  real  estate  is  specifically  devised,  the 
debts  will  not  be  charged.    2  P.  Wms.  187;  5  Ves.  359;  7  ib.  209; 

3  Russ.  108,  cited  in  3  Lomax,  265;  2  John.  Ch.  R.  614. 

And  a  general  charge  may  be  so  explained  as  to  subject  only  a 
part  of  the  real  estate  and  not  the  whole.    2  Ves.  313. 

Yet  notwithstanding  it  is  against  the  policy  of  the  law  to  charge 
real  estate  by  construction,  and  thus  fetter  the  disposition  of  real 


160  CHARGES  ON  REAL  ESTATE.  [CH.  XXIV. 

estate,  where  the  language  of  the  testator  admits  of  a  different  in- 
terpretation ;  yet  the  testator's  intention  is  the  cardinal  rule,  and 
if  not  contrary  to  some  positive  rule  of  law,  must  prevail.  11 
Conn.  144;  6  Rand.  589;  1  Atk.  383. 

§  4.  Personal  estate  is  the  first  fund  liable  to  the  payment  of 
debts,  and  where  the  testator's  intention  appears  to  be  to  txtrnpt  it 
and  provide  for  the  payment  of  debts  by  a  sale  of  real  estate,  and 
not  merely  by  a  charge  on  real  estate,  the  proceeds  of  such  real 
estate  should  be  so  applied.  18  Pick.  285.  Where  the  testator 
directed  his  executor  to  sell  lands,  and  from  the  proceeds,  after 
paying  all  demands,  &c.  to  pay,  &c.,  the  lands  being  worth 
$3,000,  and  there  being  personal  property  of  about  $7,000,  and 
debts  amounting  to  $6,000 — held,  there  was  no  intention  to  post- 
pone the  application  of  the  personal  property  to  the  payment  of 
the  debts  as  usual,  but  only  that  the  proceeds  of  the  real  estate 
should  not  be  distributed  till  payment  of  all  demands.  23  Pick. 
163. 

§  5.  If  testator  bequeath  land  and  negroes  and  other  personal 
property,  all  specifically  described  to  his  wife,  and  similar  prop- 
erty specifically  described  to  his  nephew — and  these  devises  com- 
pose the  tnlire  estate — and  he  then  bequeaths  to  his  niece  $700 
to  be  raised  out  of  the  estate — Hdd,  this  general  legacy  to  niece 
does  not  yield  to  the  specific  ones,  but  is  a  proportionate  charge 
on  them  both.    4  Dana,  549. 

§  6.  The  question,  in  every  case,  should  be,  "whether  accord- 
ing to  the  true  intent  and  meaning  of  the  mil,  collected  from  the 
settled  principles  of  the  Courts  of  Chancery,  and  the  rules  of  law, 
the  personal  estate  of  the  testator  is  to  be  considered  exempt  from 
the  payment  of  his  dsbts."  The  rule  is,  "The  intention  of  the 
testator  to  exempt  must  be  manifested  in  such  a  manner,  as  that 
persons,  out  of  Court,  on  reading  his  will,  cannot  fail  to  agree 
that  such' was  his  intention.  *  *  # 

"On  comparison  of  all  the  cases,  there  are  scarcely  two  in  which 
the  Courts  agree.  I  can  find  no  rule  agreed  on  but  one,  that,  as 
express  words  are  not  necessary  to  exempt  the  personal  estate, 
there  must  be  in  the  will,  that  which  amounts  to  evident  demon- 
stration, or  plain  intention,  or  necessary  implication,  to  operate 
that  exemption.    The  Judge  must  in  every  case,  look  at  the  whole 


GH.  XXIV.]  CHARGES  ON  REAL  ESTATE.  161 

will,  and  then  ask  himself  whether  he  is  convinced  that  it  was 
the  testator's  intention  to  exempt  his  personal  estate.  Many  rules 
are  clear  and  positive,  and  it  is  certain,  that  it  is  not  enough  for 
the  testator,  to  leave  charged  his  real  estate  with,  or  in  any  manner 
bind  it  to  the  payment  of  his  debts,  but  the  personal  estate  must 
be  discharged.  It  must  therefore  appear  sufficiently  to  every  Ju- 
dicial mind,  that  the  testator  meant  not  merely  to  charge  the  real 
estate,  but  to  charge  it  as  to  exempt  the  personal.  I  Mer.218, 230; 
6  Cowen,  333.    (See  sec.  2.)* 

§  7.  A  bona  fide  purchaser  of  land  charged  generally  with  the 
payment  of  debts  and  legacies,  is  not  bound  to  see  to  the  applica- 
tion of  the  proceeds — 13  Pick.  393;  2  Dana,  84 — unless  there  be  a 
specific  appropriation  of  the  purchase  money,  lb.  6  Ohio,  115. 

A  testator  devised  real  estate  to  a  trustee  and  heirs  to  invest 
and  re-invest  the  same  from  time  to  time,  in  stocks ;  and  to  pay 
over  the  income  thereof  and  $200  of  the  principal,  annually,  to 
his  daughter — Held,  the  trustee  had  power  to  sell  the  real  estate, 
and  thetrust  did  not  attach  to  the  land  in  the  hands  of  purchas- 
ers,   20  Pick.  25, 

§  8.  In  cases  of  "rents  and  profits,"  or  money  received  by  trus- 
tees, the  legatees  and  creditors  must  look  to  such  rents,  &c,  and 
not  further  charge  the  land,    I  Mad.  186.    (See  sec.  9.) 

But  where  a  testator  gives  his  daughter  a  legacy,  charged  on 
real  estate  devised  to  his  wife,  the  executrix,  she  is  liable  as  de- 
visee, and  not  as  executrix,  and  the  remedy  is  in  Chancery.  4 
Dana,  69. 

§  9.  And  a  Court  of  Chancery  will  direct  the  sale  of  lands, 
where  the  rents  and  profits  are  insufficient — 6  Mad.  485;  6  John. 
Ch.  70 — ^unless  the  trust  be  plainly  created,  for  payment  by  per- 
ception of  rents  or  by  mortgages.     I  Mad.  186.t' 

*  A  tract  of  land  was  devised  to  J.  D.  "free  and  clear  of  any  incumbrance,  ex- 
cept as  hereinafter  mentioned,  with  a  limitation  over  "in  case  devisee  die  with- 
out issue,"  and  with  directions  that  "in  consideration  of  the  devise,  J.D.  should 
pay  at  different  periods  certain  sums  to  different  persons." — Held,  J.  D.  is  only 
personally  liable  for  the  sums  appointed  to  be  paid  in  his  life-time,  and  that  the 
amount  falling  due  after  his  death,  is  a  charge  only  upon  the  land  devised.  3 
OhioR.  163. 

t  A  widow,  devisee  for  life  or  widowhood,  on  condition  of  maintaining  and  ed- 
ucating children,  is  not  accountable  to  remainder-men,  for  what  skc  consumed, 
in  support  of  herself  and  children,  while  a  widow.    4  Dana,  69. 

21 


162  CHARGES  ON  REAL  ESTATE.  [CH.  XXIV. 

Devise  to  testator's  son  H.  C.  of  all  estate  real  and  personal, 
subject  to  the  following  bequests — one  to  B.  C.  of  $1000,  to  be 
paid  to  her  at  the  age  of  18,  "in  land  at  such  place  as  my  son 
Henry  can  buy,"  does  not  contain  a  charge  on  real  estate  of  devi- 
sor's in  hands  of  purchasers  from  the  devisee.     6  Ohio,  115. 

But  where  the  conveyance  of  the  legal  estate  had  been  made  to 
P.  by  the  vendors,  and  the  property  was  afterwards  sold  at  sheriffs' 
sale  under  judgments  recovered  against  him,  notice  having  been 
previously  given  to  the  purchaser  at  such  sale  by  an  uncle  of  one 
of  the  daughters,  who  was  also  a  rateable  inhabitant  of  the  town- 
ship in  which  the  daughters  were  settled,  and  by  another  rateable 
inhabitant  of  the  same  township,  of  the  existence  of  the  charge — 
Held,  the  purchaser  had  notice,  and  took  the  land  subject  to  the 
charge.    I  R.  386. 

§  10.  It  is  the  law  of  Pennsylvania,  that  when  the  real  and 
personal  estate  are  blended  in  the  same  devise,  the  land  is  char- 
ged with  the  payment  of  legacies.   1  P.R.I  11, 112;  6Binn.395. 

But  the  lands  descended  are  first  liable,  and  next  the  land  de- 
vised. 13  S.  &  R.  348;  3  Yeates,  294;  2  Binn.  appendix,  526; 
2D.  131. 

§  11.  To  make  a  legacy  a  continuing  lien  on  the  lands  devised 
so  as  to  follow  the  lands  into  the  hands  of  a  purchaser,  it  must  ap- 
pear expressly  or  by  direct  implication  that  such  was  the  testator's 
design.    8  W.  198;  9  W.  529. 

A  testator  devised  his  lands  to  his  three  children,  charged  with 
certain  legacies.  The  devisees  made  partition  of  the  land  among 
themselves — Held,  the  legacies  ceased  to  be  a  lien  on  the  respec- 
tive shares  for  more  than  the  proportion  of  each — 2  P.  R.  279 — 
especially  when  the  share  of  one  devisee  was  sold  under  a  judg- 
ment against  him.  Ibid.  Though,  perhaps,  if  one  share  proved 
inadequate  to  the  due  proportion,  the  others  might  be  liable.  Ibid. 
See  9  W.  234,  529;  6  W.  167,  238. 


CH.  XXV.]  TRUSTS  CREATED  BY  DEVISE.  163 


CHAPTER  XXV. 

TRUSTS  CREATED  BY  DEVISE. 

§  1.  Intimately  connected  with  the  subject  of  "Charge  on  real 
estate,"  is  that  of  "Trusts  created  by  devise." 

A  trust  may,  like  a  charge,  be  either  express  or  implied.  It 
may  be  created  by  express  virords,  or  by  words  importing  an  in- 
tention to  create  a  trust.     Comst.  Digst.  citing  2  Finch,  358. 

The  words,  "  I  devise,  request,"  or,  "it  is  my  dying  request," 
may  be  sufficient,  unless  there  be  plain  words  or  necessary  impli- 
cation to  the  contrary.  Ibid.  A  testator  may  direct  his  land  to  be 
sold  and  converted  into  money  for  more  convenient  distribution 
among  his  heirs,  and  may  appoint  a  trustee  for  that  purpose. — 
Comst.  Dig.  166. 

Any  understanding  by  the  executor  or  assignee  that  the  thing 
given,  is  to  be  held  in  trust,  is  sufficient.  I  Vernon,  296.  Thus, 
where  goods  of  a  decedent  come  into  the  hands  of  any  one,  who 
declares  that  he  holds  the  property  in  trust  for  the  children  of  the 
decedent,  the  children  ma?/,  if  all  the  debts  of  the  decedent  are 
paid,  maintain  a  joint  action  against  such  person  for  money  had 
and  received,  without  taking  out  letters  of  administration.  14  S. 
&  R.  105.  But  if  such  person  wasted  it,  children  can  in  this 
form  of  action  recover  only  what  he  received.     Ibid. 

So,  real  estate  purchased  by  a  guardian  with  funds  of  his  wards, 
will  be  treated  as  a  trust  for  the  use  of  the  wards,  though  convey- 
ed by  the  guardian  to  one  only.    17  S.  &  R.  144. 

§  2.  The  thing  given  must  be  certain,  and  the  object  in  trust, 
certain. 

The  thing  is  certain,  where  the  whole  property  must  remain 
entire  during  the  life  of  the  first  donee ;  and  it  is  uncertain  where 
any  power  resides  in  the  first  donee  to  diminish  the  amount. — 
Comst. Dig.  citing  2 Swift,  107;  2 Ves. 333, 529;  Sib. 529. 

If  the  testator's  intention  cannot  be  literally  complied  with,  the 
Courts  will  direct  what  is  consistent  with  his  general  intent.  2 
Ves. 387;  Sib.  141. 


164  TRUSTS  CREATED  BY  DEVISE.  [cH.  XXV. 

Whether  a  legacy  is  given  absolutely  depending  on  the  good 
will  and  friendship  of  the  legatee  to  deal  with  it  as  the  testator 
recommends,  or  conditional  and  coupled  with  a  trust,  depends 
on  this:  If  it  was  intended  he  should  have  it  entirely  within  his 
own  power  and  discretion  to  make  the  application  or  not,  it  is 
absolutely  given ;  but,  if  on  the  face  of  the  will,  there  is  a  plain 
declaration  that  he  is  to  take  it  in  trust,  though  the  trust  be  not 
declared,  or  be  ineffectually  declared,  or  become  incapable  of  ta- 
king effect,  the  legatee  will  be  trustee  for  those  who  would  take 
either  under  the  will  or  at  law.    2  Hill's  Ch.  R.  398. 

In  case  of  a  charitable  bequest,  if  the  object  of  the  trust  be  not 
sufficient  to  exhaust  the  fund,  the  Courts  will  increase  the  allow- 
ance even  against  the  heir  claiming  the  surplus — 4  Ves.  11 — but 
not  where  there  is  one  of  benevolence  or  liberality  only.  9  ib. 
399.* 

§  3.  The  trust  fund  does  not  descend  to  the  representative  of 
the  trustee,  but,  as  long  as  distinguishable,  it  enures  to  the  benefit 
of  the  cestuy  que  trust. 

And,  though,  in  general,  money  cannot  be  pursued,  yet,  if  giv- 
en to  be  laid  out  in  land  to  be  settled  to  certain  uses,  and  the  do- 
nee afterwards  purchases  an  estate,  which  he  does  not  settle,  but 
by  writing  owns  that  it  was  made  with  the  trust  money,  this  is  a 
sufficient  declaration  of  the  trust  to  bind  the  land.  2  P.  Wms. 
414. 

§  4.  All  persons  coming  into  possession  of  trust  property  are 
bound  by  the  trust.  A  trust  cannot  be  impaired  by  the  volunta- 
ry act  of  the  trustee.  A  purchaser  with  notice  of  the  trust  will 
hold  the  property  subject  to  it,  notwithstanding  he  may  have 
paid  a  consideration  for  it.    Comst.  Dig.  224. 

And,  therefore,  where  A.  conveyed  real  estate  upon  certain 
trusts,  with  power  to  sell  and  convey,  and  the  trustees  afterwards 
re-conveyed  to  the  grantor,  intending  thereby  to  annul  the  trusts, 


•Where  property  real  and  personal  was  devised  in  trust,  tiie  rents  and  issues 
thereof  to  be  paid  to  the  cestui/  que  trust,  and  part  of  the  real  estate  was  taken  for 
a  road,  and  the  damages  therefor  paid  to  the  trustee — Held,  such  damagea  were 
not  income,  &c.  to  be  paid  to  the  cest.  que  trust,  but  a  substantial  capital,  the  {»<«•- 
«<  on  which  alone  was  payable  to  him.  1  Metcalf,  75.  See  also,  14  Pick.  108; 
15  Pick.  471. 


CH.  XXV.J  TRUSTS  CREATED  BY  DEVISE.  165 

— held,  he  took  thereby  the  legal  interest  subject  to  the  trusts,  and 
a  re-conveyance  by  him  to  trustees  revived  the  power  of  sale. — 
20  Pick.  174. 

But  there  is  an  exception  to  this  rule  in  the  case  of  a  disseizor, 
who  does  not  hold  in  privity  to  the  estate  to  which  the  trust  is 
annexed.    Comst.  Dig.  224. 

And  where  a  devise  of  real  estate  was  made  to  a  trustee,  his 
.heirs  and  representatives  in  trust,  to  invest  and  re-invest  the  same 
from  time  to  time  in  safe  stock,  and  to  pay  the  income  thereof, 
with  $200  annually,  of  the  principal,  to  the  testator's  daughter, 
during  her  life,  and  after  her  decease  to  pay  and  transfer  the  whole 
to  her  children,  the  trustee  may  sell  the  real  estate  discharged  of 
the  trust.    20  Pick.  25. 

§  5.  Where  lands  are  devised  for  a  particular  purpose,  what 
remains  after  satisfying  such  purpose,  will  result  to  the  heirs-at- 
law.  1  P.  Wms.  390.  So,  if  in  such  case,  the  residue  had  been 
made  over  to  A.  B.  for  life,  on  the  death  of  A.  B.  it  will  result  to 
the  donor's  heirs-at-law.  2  Bro.  Ch.  Cas.  589.  So,  if  by  accident 
or  otherwise,  the  particular  trust  is  defeated,  a  trust  will  result  in 
favor  of  the  heirs.    3  P.  Wms.  20. 

But  a  distinction  exists  between  cases,  where  the  whole  legal 
interest  is  given  for  the  purpose  of  satisfying  the  trust  expressed, 
and  the  execution  of  the  trust  does  not  exhaust  the  whole ; — and 
cases,  where  the  legal  interest  is  given  for  a  particular  purpose,  to 
give  to  the  devisee  of  the  particular  estate  the  beneficial  interest. 
In  the  former  case,  the  residue  results  to  the  heir ;  in  the  latter,  it 
will  go  to  the  devisee.    2  P.  Wms.  20;  I  Ves.  &  Be.  272. 

And  if  there  be  an  absolute  devise  of  the  property  without  re- 
quest or  direction,  as  to  a  further  disposition  of  it,  no  trust  can 
result  to  the  heir.    Comst.  Dig.  224. 

§  6.  The  first  general  rule,  governing  the  accountability  of  trus- 
tees is,  that  they  shall  not  make  profits  to  themselves,  out  of  the 
trust  estate ;  and  this  rule  makes  them  accountable  for  all  the  in- 
terest actually  made  and  received  by  them.  But  as  it  was  always 
diificult  to  ascertain  the  actual  amount — sometimes  impracticable 
— the  rule  has  been  adopted  of  charging  them  only  with  interest 
on  actual  balances,  and  the  funds  received  during  the  cunent 


166  POWERS  CREATED  BY  DEVISE.  fCH.  XXVL 

year  as  considered  unproductive  till  the  close  of  it.  2  Hill's  Ch. 
R.  560. 

Where  an  administrator  rendered  an  erroneous  account  of  as- 
sets, and  paid  the  crediters  their  proportion  thereof,  and  took 
their  assignment  for  the  balance — Held,  he  should  be  considered 
as  holding  the  funds  afterwards  collected,  as  trustee — the  assign- 
ment should  be  set  aside  and  errors  corrected,  and  executor  or 
administrator  ordered  to  account.    2  Hill's  Ch.  R.  467. 

A  guardian  or  quasi  trustee,  who  purchases  up  claims  against 
his  ward,  or  cestuy  que  trust,  should  only  be  reimbursed  his  ac- 
tual outlay  and  interest.    5  B.  Monroe,  368. 


CHAPTER  XXVL 

POWERS    CREATED    BY    DEVISE. 

§  1.  General  intention  must  govern  the  construction  of  the  in- 
strument creating  a  power.  6  John.  73.  The  end  and  design  of 
the  testator  must  be  carried  out ;  and  no  particular  form  of  words 
is  necessary  to  create  a  power.  10  John.  R.  94;  Sugd.  on  Pow. 
172. 

Powers  must  be  equitably  construed  in  a  court  of  law.  11  John. 
169.  It  is  sufficient  to  carry  out  the  substantial  interest  of  the 
testator.  11  John.  169;  15  ib.  346;  7  John.  Ch.  R.  25;  2  John. 
R.  1. 

To  support  such  intention,  a  power  general  in  its  terms,  has 
been  reduced  to  a  particular  purpose,  et  vice  versa.  7  John.  Ch. 
R.  25. 

A  mere  naked  power,  not  coupled  with  an  interest,  is  not  con- 
fined to  the  strict  import  of  the  words  in  their  legal  sense,  but 
must  be  construed  according  to  the  testator's  intent.  2  Cowen,  195. 
A  naked  power  is  a  mere  power  to  sell,  not  coupled  with  any  in- 


CH.  XXVI.]  POWERS  CREATED  BY  DEVISE.  167 

tent,  and  ceases  on  the  death  of  the  devisee.  3  Day,  388;  Cox,  432; 
3  Cowen,  651.  It  is  also  revocable:  6  Conn.  559;  1  Chance  on 
Pow.  London  ed.  131. 

A  power  is  coupled  with  an  interest,  where  the  person  clothed 
with  it  must  devise  a  present  or  future  interest  in  the  subject  it- 
self, over  which  the  power  is  to  be  exercised,  and  not  merely  in 
that  which  is  produced  by  the  exercise  of  the  power:  6  Conn.  R. 
559;  14  John.  R.  391,  527.  And  such  power  is  irrevocable:  6 
Conn.  R.  559. 

§  2.  A  man  may  be  invested  by  a  single  instrument  with  a 
power  coupled  with  an  interest  as  to  one  estate,  and  a  naked 
power  as  to  another  estate  on  the  same  land — as,  where  there  is 
a  particular  estate  with  an  interest,  and  remainder  over  to  third 
person:  3  Hill's  R.  361.  And  in  such  case,  a  sale  by  the  partic- 
ular tenant  is  null  against  the  remainder-man.     Ibid. 

§  3.  A  power  may  be  appendant,  or  where  the  donee  of  the 
power  has  an  estate  in  the  land,  and  the  estate  to  be  created  by 
the  power,  may  take  effect  in  possession,  during  the  continuance 
of  the  estate  to  which  it  is  annexed ;  or  it  may  be  in  gross — as, 
where  such  estate  will  not  take  ejQfect,  till  after  the  determination 
of  the  estate  to  which  it  is  annexed.    2  Cowen,  195.  .  ./ 

A  power  to  sell  includes  all  powers  necessary  to  its  perform- 
ance. These  must  be  such  as  are  most  usual  and  proper,  among 
discreet  men  in  similar  cases,  of  which  the  Court  must  judge. — 
7John.Ch.R.25;  1  J.  J.  Marsh.  289;  2  Wend.  34;  12  ib.  663-4. 

So,  a  power  to  mortgage  includes  a  power  to  sell  in  default  of 
payment  by  the  mortgagor.    7  Ch.  R.  22, 25. 

If  the  power  be  exceeded,  a  recital  of  it  in  the  deed  does  not 
cure  the  error.     3  Hill,  367. 

§  4.  But  a  power  to  sell  land  and  invest  money,  &c.  authorizes 
the  administrator  to  sell  for  cash  only — and  a  debt  of  testator  to 
purchaser  cannot  be  taken  in  payment — 1  Hill,  111;  3  ib.  361, 373 
— ^unless  there  be  something  in  the  power  itself,  or  in  the  usage 
of  trade  varying  this  construction.    3  Hill,  373. 

An  executor  cannot  pledge  the  estate  of  his  testator  for  a  loan 
of  money,  nor  create  any  lien  on  it ;  and  if  the  will  empowers 
him  to  raise  money  on  the  credit  of  the  estate  through  banks,  he 
cannot  raise  it  through  private  individuals:     1  Freem.  Ch.  R.  42; 


168  POWERS  CREATED  bY  DEVISE.  [cH.  XXVl. 

1  Powell  on  Mortg.  61 ;  3  ib.  1033;  2  Chance  on  Pow.  388.    The 
words  "  issues  and  profits"  do  not  alter  the  rule.     Ibid. 

In  general,  a  power  to  sell  confers  no  authority  to  mortgage — 
3  Hill's  R.  361;  1  Sugd.  on  Pow.  538. 

A  power  in  a  will  to  sell  such  property  as  may  be  useless,  will 
not  authorize  the  executor  to  sell  any  property  he  may  choose — 
2M'Cord'sCh.R.393. 

When  the  power  is  to  sell,  and  something  over  is  added  show- 
ing that  the  power  to  sell  is  not  to  be  taken  in  its  primary  sense, 
but  means  a  power  to  mortgage,  the  donee  may  act  accordingly. 
There  is  a  substantial  difference  between  raising  money  by  mort- 
gage and  sale,  and  a  power  to  raise  it  by  one  of  these  means,  nega- 
tives the  other.    3  Hill,  367-8. 

And  even  if  the  power  be  to  raise  money  by  sale  and  by  rents 
and  profits,  proceeds  to  be  invested  and  otherwise  applied  to  the 
uses  of  the  will,  the  donee  cannot  mortgage  even  to  secure  a  small 
sum  borrowed  by  him  for  the  use  of  the  estate.    3  Hill,  370. 

Under  a  power  to  sell,  part  may  be  sold  at  one  time  and  part 
at  another.    2  Burrows,  1136. 

A.  devised  one  half  of  his  real  estate,  to  his  wife  for  her  life, 
with  permission  to  sell  with  consent  of  his  executors,  so  much  of 
the  real  estate  as  might  be  sufficient  to  render  her  comfortable, 
with  remainder  of  his  real  estate  to  his  children — Held,  that  a 
conveyance  of  the  widow  was  valid,  for  that  the  power  extended 
over  the  whole  estate.  16  Mass.  186.  But  if  the  devise  had  been 
of  the  income  of  the  estate  with  power  to  sell,  if  the  income  pro- 
ved insufficient,  a  sale  of  the  land  would  be  invalid,  unless  the 
income  was  insufficient.     14  ib.  495. 

If  a  testator  devise  an  estate  to  A.  in  trust,  to  receive  the  rents 
and  profits  thereof,  and  to  divide  the  same  among  his  children, 
and  authorize  A.  to  join  another  trustee  with  him,  or  substitute 
another  in  his  stead,  and  also  desires  the  trustee  to  relinquish  the 
trust  if  his  children  should  request  him  in  writing,  and  author- 
ized the  Judge  of  Probate  in  such  case  to  appoint  a  trustee,  also 
empowered  trustee  to  sell  real  estate  or  part  of  it,  when  recom- 
mended by  a  majority  of  his  children,  and  A.  died  without  nom- 
inating, and  Probate  Judge  appointed  B.  trustee  under  the  will, 
— held,  that  the  power  to  sell  created  by  the  will  was  coupled 


CH.  ItXVI.]  POWERS  CREATED  BY  DEVISE.  169 

with  a  trust  which  required  the  execution  of  the  power,  and  that 
B,  had  the  authority  to  sell,  that  the  will  conferred  on  A.  2  Met- 
calf,  243. 

§  5.  If  a  testator  directs  a  sale  of  his  real  estate  without  declaring 
by  whom  the  sale  shall  be  made,  the  executor,  if  the  fund  be  dis- 
tributable by  him,  shall  have  the  power  by  implication — Sugd.  on 
Pow.  172;  2  S.  &  R.  238;  4  Madd.  44— unless  it  plainly  appear 
that  the  testator  did  not  intend  that  his  executor  should  exercise 
such  power.     10  John.  R.  94, 

So,  a  power  to  sell  or  mortgage  under  like  circumstances,  will 
by  implication,  vest  in  the  executor.  Sudg.  on  Pow.  172.  But 
see  2d  Desaus.  Ch.  R.  250,  246;  &  2  John.  252. 

In  Mississippi,  the  statute  declares,  that  "the  sale  and  convey- 
ance of  land  devised  to  be  sold,  shall  be  made  by  the  executors, 
or  by  such  of  them  as  shall  undertake  the  execution  of  the  will, 
if  no  other  person  be  thereby  appointed  for  that  purpose,  or,  if  the 
person,  so  appointed,  shall  refuse  to  perform  the  trust,  or  die  be- 
fore he  shall  have  completed  it — but  if  none  of  the  executors  na- 
med in  such  will  shall  qualify,  or  after  they  have  qualified,  shall 
die  before  the  sale  and  conveyance  of  such  lands,  then,  in  these 
cases,  the  sale  and  conveyance  thereof  shall  be  made  by  such 
person  or  persons  to  whom  administration  of  the  testator's  estate 
with  will  annexed,  shall  be  granted"  How.&  H.  ch.36,  sec.  90, 
p,  413. 

Further — If  there  be  more  than  one  executor,  administrator  or 
collector,  named  in  the  letters,  any  one  or  more  of  them,  on  neg- 
lect of  the  rest,  may  return  an  inventory,  &c;  and  the  one  so 
neglecting  shall  not  thereafter  interfere  with  the  administration, 
or  have  any  power  over  the  personal  estate  of  the  deceased.  But 
tiie  executor,  so  returning,  shall  thereafter  have  Ihe  whole  admin- 
istration, unless  within  two  months  after  such  return,  the  delin- 
quent or  delinquents  shall  assign  to  the  Court  some  reasonable 
excuse,  which  it  shall  deem  satisfactory.    H.  &  H.  sec.  65,  p.403. 

§  6.  The  probate  of  a  will  is  not  necessary  to  the  due  execu- 
tion of  a  power  created  by  it,  and  the  execution  of  the  power  will 
so  relate  to  the  instrument  creating  it,  that  a  purchaser  of  land 
under  the  power,  will  hold  by  virtue  both  of  the  power  and  the 
will  creating  it.  7  John.  Ch.  R.  45,  48. 
22 


I'rt  POWfiRS  CREATED  BY  DEVICE.  [oH.  XXVI. 

Therefore,  a  power  to  a  mortgagee  to  sell  land,  may  be  execu- 
ted'by  an  administrator  of  the  mortgagee  residing  in  another  State 
' — for  the  authority  is  derived  from  the  mortgage,  and  not  from 
the  Court.  Ibid.    (But  see  statute  ante,  sec.  5.) 

The  doctrine,  that  a  deed  executing  a  power  generally  relates 
back  to  the  instrument  creating  the  power,  is  a  fiction  for  the  ad- 
vancement of  right,  and  is  not  to  be  applied  to  the  injury  of  a: 
stranger  by  defeating  his  lawful  intervening  rights.  20  John.  R.  537. 

§  7.  A  power  to  two  executors  to  sell  and  dispose  of  an  estate, 
in  such  manner  as  they  shall  judge  most  beneficial  to  the  devisees, 
shall  not  give  one  of  them  a  power  to  sell,  nor  authorize  one,  or 
both  to  enter  on  and  occupy  the  estate.  3  Day,  384;  2  Pennington, 
438.    (But  see  3  Cowen,  651;  6  John.  73.) 

So,  if  all  the  executors  are  living  and  have  qualified,  and  are 
capable,  all  must  join.  2  Fonb.  Eq.  184;  Toller ,485;  Co.Litt.  112? 
8  Cranch.  9;  2  John.  Ch.  C.  254. 

In  Ohio,  a  power  to  sell  land.may  be  exercised  by  a  single  ex- 
ecutor. 1  Ohio  R.  232.  In  New- Jersey,  if  one  of  two  executors 
refuse  or  neglect  to  act,  the  other  may  act.  2  Green,  373.  If  the 
agreement  to  sell  is  signed  by  one  executor,  the  others  may  con- 
firm it  by  act  in  pais,  as  by  delivery.    4  Munf  332. 

§  8.  If  a  power  be  given  to  several  executors,  and  the  will  doed 
not  expressly  point  to  a  joint  exercise  of  it,  a  single  surviving  ex- 
ecutor may  execute.  Sugd.  on  Pow.  166;  3  Binney,  69;  15  John. 
348;  lCaine'sC.16;  14John.527;  4Munf.332;  4Har.&M'Hen. 
485. 

A  mere  authority  to  sell,  if  it  be  "for  payment  of  debts,"  m&y 
be  executed  by  a  surviving  executor.  But  "this  gives  an  interest, 
for  payment  of  debts  is  a  good  consideration,"  and  if  they  refuse 
to  sell,  a  court  of  Equity  may  compel  them.  Swinb.  part  6,  sec.  3; 
2  Humph.  365. 

So,  where  the  testator  "  devised  his  lands  to  two  executdrS  tti 
be  sold,"  and  died,  and  one  of  the  executors  died,  it  was  ad- 
judged that  the  survivor  might  sell,  because  this  wfa  a  trtist  coUp' 
led  with  an  interest..    Ibid. 

But  a  devise  "  that  his  executors  shall  sell,"  is  a  mere  likked 
authority  without  an  interest,  and  in  such  casfe  if  one  eiecutdr  di(S 
the  other  cannot  sell  alone.    For,  says  Swinburnei  "art  aitthorU^ 


CH.  XXVI. J  POWERS  CREATED  BY,P5VI^E.  j|Tl 

must  be  strictly  pursued,  which  cannot  be  done  in  this  case,  be- 
cause the  testator  appointed  two  to  sell,  and  one  of  the  two  hav- 
ing died,  the  authority  and  trust  given  to  both  jointly  was  there- 
by determined.  Ibid.  See  also  2  Dana,  80;  9  ib.  102;  2  Humph. 
367*    So  of  a  trust  dependant  on  a  power.     14  John.  527. 

So,  the  words,  "I  empower  my  executors  to  sell  my  real  estate," 
were  adjudged  to  create  a  naked  power,  and  the  executor,  canaot 
maintain  ejectment.    8  Yerg.  18. 

And  although  a  will  directing  executors  to  sell  land  for  benefit 
of  creditors,  or  to  do  any  act  in  which  third  persons  are  concern- 
ed, and  who  have  a  right  to  call  on  the  executors  to  execute  the 
power,  confers  an  inttrtst — 2  Humph.  365 — Yet,  it  seems  an  au- 
thority to  sell  lands,  if  it  becomes  necessary  and  advisable  to  do 
so,  confers  no  interest  nor  title  in  the  land.  8  Yerg.  121. 

If  a  testator  direct  his  executors,  or  any  two  of  them,  to  sell  all 
his  estate  both  real  and  personal  whatsoever,  and  direct  the  pro- 
ceeds to  be  equally  divided  among  his  children,  and  appointed  his 
wife,  son-in-law,  and  two  of  his  children  executors,  all  of  whom 
had  interests — Held,  the  power  would  survive.  16  John.  167. — 
See  also  as  to  powers  that  survive,  10  Peters,  532;  2  John.  Ch.  R. 
1, 19,  20;  14  John.  527;  3  Binney,  69. 

A  positive  direction  in  a  will  to  sell,  coupled  with  a  direction 
that  the  executors  shall  lay  out  the  proceeds  to  the  best  advantage 
for  the  children,  does  not  change  it,  nor  render  the  sale  discre- 
tionary with  the  executor,  though  part  of  them  who  accept  the 
trust,  may  make  the  sale,  while  the  concurrence  of  all  might  be 
jequired  to  distribute  the  proceeds.    2  Dana,  81. 

Where  a  devise  was  to  wife  for  life,  then  to  testator's  soq  in 
tail,  and  if  he  died  without  issue,  then  the  land  should  be  sold 
by  his  executors — Held,  executors  had  only  a  naked  power  to  sell, 
and  if  one  died,  the  power  did  not  survive.  Swinb.  part  6,  sec.  3, 
(7.)    See  also  2  Penn.  238.  '    ',  '".    ' 


•Where  the  power  depends  on  the  discretion  of  the  nominees,  the  act  of  1799 
(Ky.  laws,)  does  not  apply.  2  Dana,  80 ;  9  Dano,  102.  If  the  legal  title  be  in  ona 
of  the  heirs,  the  executor  may  sell  the  equitable  title  so  as  to  enable  the  pareliaB- 
er  to  sue  for  the  legal.     9  Dana,  102. 


*ff3  POWERS  CREATED  BY  DEVISE.  ("CH.  XXVI, 

'  §  9.  Where  executors  are  authorized  to  sell  lands,  and  one  or 
more  neglect  or  refuse  to  qualify,  a  sale  by  the  residue  who  do 
qualify,  is  good — 14  Wend.  90;  2  Paige,  195 — even  during  the 
executor's  life — 2  Green,  373;  3  Dana,  195 — (But  see  3  Day,  384.) 
In  Pennsylvania,  one  administrator  may  release  or  dispose  of  the 
estate  without  the  other.  4  Wash,  Ct.  R.  186 — See  stat.  of  Miss. 
ante,  sec.  5. 

Where  testator  directed  that  T.  S.  and  E.  G.  should  sell  kis 
lands,  and  made  them  executors  and  died — if  they  refuse  the  ex- 
ecutorship, they  may  sell  the  lands,  because  they  are  appointed 
by  their  proper  names  so  to  do.  But,  if  they  had  not  been  nam- 
ed by  their  proper  names,  the  sale  had  been  good ; — for,  where 
A.  devised  to  his  sons-in-law,  to  sell  his  lands,  without  naming 
them,  and  afterwards  one  of  them  died — held,  the  survivor  could 
sell.  So,  where  the  devise  was  to  four  persons  (naming  them,) 
to  the  intent  that  they  sell  the  testator's  lands,  and  the  testator 
made  them  all  joint  executors  and  died,  then  one  of  them  refused 
— Held,  the  rest  might  sell.  This  was  a  doubt  at  Common  law, 
because  it  was  a  trust  reposed  in  all  of  them  by  the  testator  him- 
self :  but  if  instead  of  refusing  one  of  them  had  died,  then  the 
survivor  might  sell,  because  "  actus  Dei  nemini  nocet."  Swinb. 
part  6,  sec.  3,  (5.)  See  also  1  Ohio  R.  232;  2  Humph.  367;  2 
Murphy,  84. 

But  where  executors  are  directed  by  will  to  sell  and  convey 
real  estate,  "any  two  or  more  to  act,"  this  is  not  a  personal  trust. 
One,  therefore,  who  does  not  qualify,  cannot  act  with  one  who 
does,  in  selling  under  the  will.     1  B.  Monroe. 

The  foregoing  rule  laid  down  by  Swinburne  is  more  intelligi- 
bly stated,  in  the  following  decision,  reported  2  Dana,  79. 

"A  power  given  to  a  plurality  of  persons  cannot  be  exercised 
by  part  of  them,  and  this  rule  the  Common  law,  before  the  statute 
of  Henry  8th,  applied  to  executors.  When  the  power  was  given 
to  them  by  their  proper  names,  a  mere  poicer'was  given  to  them 
as  individuals  and  not  as  executors.  When  conferred  on  the  ex- 
ecutors merely  as  such,  as  where  it  is  coupled  with  an  interest, 
or  with  an  express  trust  consequent  on  the  primary  power  (though 
given  to  the  executors  nominatim,)  it  is  to  be  considered  as  con- 
ferred on  them  in  their  fiduciary  capacity  collectively,  and  it  sur- 


CH.  XXVI.]  POWERS  CREATED  BY  DEVISE.  173 

vives  as  long  as  more  than  one  remains,  but  not  to  a  single  one. 
Ibid.  78,  79* 

A  power  to  executors,  or  a  major  part  of  them,  vests  in  the  last 
survivor  and  his  representatives.  2  John.  Ch.  R.  1;  14  John.  R. 
527. 

§  10.  A  testator  directed  executors  to  sell  lands,  and  executors 
sold  accordingly — it  was  held,  that  the  will  being  lost,  the  execu- 
tors might  go  into  Chancery,  to  have  trespassers  removed  to  ena- 
ble them  to  make  title  to  the  purchasers.     3  Humph.  247. 

Where  a  testator  directed  his  real  estate  to  be  sold,  and  the  pro- 
ceeds to  be  distributed  among  the  children  in  certain  proportions, 
it  was  held,  that  a  mortgage  by  one  of  the  legatees,  did  not  create 
any  lien  on  the  land.    3  W.  289. 

In  what  cases  Equity  will  support  a  power,  see  2  Lomax,  175, 
183. 

Though  Equity  will  supply  a  defect  in  the  execution  of  a 
power,  a  right  cannot  therefore  be  set  up  under  it  at  law.  8 
Co  wen,  526. 

A.  having  a  house  and  lot  in  town,  and  also  two  tracts  of  land, 
devised  that  his  executors  should  sell  one  of  the  tracts  of  land, 
and  his  house  and  lot,  to  pay  his  debts,  and  that  the  widow  should 
have  the  other  tract  during  her  life ;  and  at  her  death,  it  should 
be  sold,  and  the  proceeds  divided  among  his  children,  then  living. 
The  executors  sold  one  of  the  tracts,  but  not  the  house  and  lot, 
and,  (one  of  them  dying,)  the  survivors  sold  part  of  the  other  tract, 
— Held,  the  last  sale  was  void ;  the  power  having  been  extinguish- 
ed by  selling  one  tract  for  the  payment  of  debts,  the  other  being 
reserved.    2  Murphy,  125. 

A  power  becomes  extinct  by  complete  execution,  but  not  by  a 
partial  one — 2  Lomax,  183 — except  pro  tanto. — Ibid.  184.  If 
defectively  executed,  it  may  be  executed  over  again,    lb.  183. 

Where  there  is  a  complete  execution  of  a  power,  and  something 
ex  abundanti  created,  which  is  improper,  the  execution  is  good 


*A.  devised  his  real  and  personal  estate  to  his  wife,  and  appointed  her,  with 
others  executrix,  and  directed  sale  of  realty  if  personalty  prove  insufficient,  to 
pay  his  debts.  The  wife  alone  qualifies,  the  testator  in  his  life-time  having  dis- 
posed of  all  his  personalty — Held,  onlv  the  wife  could  execute  the  power  to  sell 
the  realty.     15  John.  346. 


;174  LEGACY.  [qh.  ;XXV;K 

■and  only  the  excess  void  ;—otherwise>  if  th.«i?e  is  not  a  complete 
execution  of  the  power,  or  where  the  boundaries  between  th&  ex- 
cess and  the  execution  are  not  distinguishable.  S'Wash.  C.C.R. 
12;  3  S.  &  R.  108;  6  ib.  211;  9  ib.  166. 

If  one  having  only  a  power  to  dispose  of  lands,,  but  no  interest 
in  them,  make  a  disposition  of  them  without  reference  to  the  pow- 
er, they  shall  be  considered  as  passing  by  virtue  of  the  power; — 
because,  otherwise,  the  disposition  would  be  inoperative  or  yQ^d. 
2  W.  188,  185. 

But  where  a  man  has  a  power  and  interest,  and  undertakes  to 
convey  generally,  as  owner  of  the  land,  without  reference  to  his 
power,  the  land  shall  pass  by  virtue  of  his  ownership.   8  W.209. 

§  12.  If  the  power  fails,  or  is  defeated,  the  property  will  de- 
scend to  the  heirs  of  the  donor.    3  Cowen,  651 ;  6  John.  73. 


CHAPTER  XXVII. 


LEGACY. 


§  1.  A  legacy  is  a  bequest  of  goods  and  chattels  by  testament, 
>  and  confers  an  inchoate  property  to  the  legatee,  to  be  perfected  by 
«  executors'  assent; — ^for  the  legatee «annot  take  possession  without 

the  assent  of  the  executor — 6  Cow.  339 — because  the  executor 
<•  must  satisfy  debts  before  legacies.  Ibid.  But  this  rule  applies 
xonly  tO' personal  estate.    Ibid.    This  is  the  law  of  England,  and 

the  law  is  the  same  here,  except  that  a  power  is  given  by  statute 

on  the  application  of  the  executor  to  sell  lands  for  payment  of 
..  debts.    Ibid. 

§  2.  Proper  legacies  are  either  general  or  specific ; — and  there 

is  an  improper  kind  of  legacy  termed  a  donation  causa  mortis. 


Crti  XXVII.]  LEGACY.  -  1'75 

A  bequest  of  quantity  of  whatever  kind,  is  geneml-^as,  of  a 
quantity  of  stock ;  and  if  the  testator  had  it  not  at  his  death,  the 
executor  must  procure  it  for  the  legatee.  A  legacy  of  $50  for  a 
ring,  is  a  general  pecuniary  legacy,  and  personal  ornaments  given 
by  will,  are  general  legacies.    2  Ves.  562;  3  Atk.  693. 

A  specific  legacy  is  a  gift  of  a  particular  thing,  as  a  horse,  a 
cow,  &c.,  and  is  not  to  abate  in  proportion,  as  a  pecuniary  legacy 
must  do,  in  case  of  an  insufficiency  of  personal  assets.  Comst. 
Dig.  187.  For  a  specific  devise  is  not  subject  to  contribution— 
but  a  general  one  is — the  remainder  after  a  life-estate  as  well  as 
the  rest,  to  make  up  the  third  for  the  widow  who  renounces.  & 
Dana,  353. 

Specific  legacies  are  of  two  kinds — 

1st.  Where  a  particular  chattel  is  distinguished  from  all  others 
of  the  same  species — as,  "  the  diamond  ring  presented  by  me  to 
A." 

2d.  Wheref  a  chattel  of  a  certain  species,  without  any  partieulaT 
designation  of  it,  is  bequeathed,  as,  "a  diamond  ring." 

In  the  first  case  the  legacy  can  be  satisfied  only  by  the  delive- 
ry df  the  particular  ring ;  and  if  not  to  be  found  the  bequest  fail»< 
unless  it  be  in  pawn,  when  the  executor  must  redeem  it  for  the 
legatee. 

But  in  the  latter  case,  the  bequest  may  be  satisfied  by  the  de* 
li^ety  of  any  thing  of  the  same  species. 

§  3.  A  specific  legacy  may  be  of  a  particulat  bond,  or  stock  in 
a  particular  fund.  Comst.  188.  As,  "of  all  the  money  due  on 
the  bond  of  P."    2  Halst.  68. 

It  may  be  carved  out  of  a  specific  chattel-^*^  part  of  a  debt 
due  from  A.- — or  part  of  stock  in  a  certain  fund,  Comst.  188— 
Se^  also  3  Dess.  47;  2  Cox,  184;  7  John.  Ch.  258;  13  S.  &  R.  348, 
-^for  other  examples  of  specific  legacies. 

A  legacy  thus — "  I  order  $500  to  be  kept  in  gold  or  silver  mon- 
ey for  each  of  ray  children,  to  be  paid  and  given  to  my  four  child- 
ren, at  lawful  age  or  marriage, — their  money  cannot  be  lent  or 
used,  but  must  be  paid  to  each  of  them,  as  they  come  of  lawful  age 
as  above  said,  and  kept  for  that  purpose" — is  not  a  specific  lega- 
cy, unless  the  sums  bequeathed  are  in  specie,  separate  and  in  par- 
cels, identified  and  described  and  given  to  a  legatee — 3  Harr.59; 


176  LEGACY.  [CH.  XX VII. 

— and  the  interest  therein  will  go  to  the  general  fund  of  assets. 
Ibid. 

§  4.  A  legacy  in  money  may  sometimes  be  specific,  as  a  certain 
sum  of  money  in  a  particular  bag  or  chest,  or  in  the  hands  of  A. 
Toller,  301;  2  Black.  Com.  512— See  sec.  5,  post 

A  testator  at  the  date  of  his  will,  owned  sixty  shares  of  the  H. 
Bank  stock,  but  before  his  death  purchased  36  more.  In  his  will 
he  bequeathed  to  his  wife  the  whole  of  his  stock  in  the  H.  Bank, 
amounting  to  $6,000 — and  in  case  he  should  sell  or  dispose  of  it, 
then  $6,000  in  cash — to  hold  the  stock  or  cash  in  her  own  right 
forever — Held,  this  was  a  specific  legacy  of  the  sixty  shares  only — 
22  Pick.  299. 

A  devise  of  "all  the  money  due  on  a  bond  against  P.  &  J."  is  a 
specific  legacy.    2  Halst.  414. 

A  legacy  "  in  notes  to  be  taken  out  of  my  notes  and  handed 
over,"  &c.,  is  not  merely  a  charge  on  the  notes,  but  a  specific  leg- 
acy of  securities  to  be  hereafter  ascertained — 2  Dev.  Eq.  288 — but 
one,  to  be  paid  as  soon  as  its  amount  can  be  collected,  if  the  leg-« 
atee  is  willing  to  receive  the  amount  in  good  notes,  is  a  general 
legacy.  Ibid,  So,  a  legacy  "  in  notes  to  be  paid  as  soon  after  my 
death  as  it  can  conveniently  be  done,"  there  being  nothing  to  de- 
note that  any  particular  notes  were  intended.  Ibid.  And  a  sub- 
sequent bequest  "of  all  the  notes  that  will  be  remaining  after  pay- 
ing off  the  legacies  herein  before  given,"  will  not  make  them 
specific,  because  the  remainder  being  uncertain  in  amount,  a 
charge  on  them,  and  not  a  fractional  part  of  them,  was  intended. 
IbU. 

§  5.  The  same  may  be  pecuniary  in  one  sense  and  specific  in 
another — specific  as  given  out  of  a  particular  fund,  and  not  out  of 
the  estate  at  large — and  pecuniary  as  consisting  of  definite  sums 
of  money,  and  not  amounting  to  a  gift  of  the  fund  itself,  or  any 
aliquot  part  of  it.  (See  sec.  4,  arUe.)  2  Cox,  184;  3  Dess.  303; 
Toller,  300.* 


*A  bequest  of  a  negro  of  a  particular  description,  with  a  direction  to  the  exe- 
cutor to  purchase  one  rather  than  divide  families,  is  a  pecuniary  one. — 1  Dev.  Eq. 
87.  So,  words  in  bequest  to  wife,  "  I  wish  her  to  get  Stanford  in  her  third,"  iB 
not  a  specific  legacy,  but  only  entitles  her  to  take  him  at  a  fair  valuation.  Dev. 
&  Batt.  360. 


CH.  XXVn.]  LEGACY.  177 

A  legacy  of  money  is  specific  only  when  the  money  is  identi- 
fied and  distinguished  from  all  other  money — as  money  in  such  a 
fcag,  or  in  such  a  bond,  or  out  of  a  particular  security,  or  in  such 
hands.     1  Hayw.  228. 

If  payable  out  of  a  particular  fund  which  fails,  it  is  lost. — 1 
Hayw.  228.  If  no  fund  be  named,  it  is  payable  out  of  the  resi- 
due.   Ibid. 

Donations,  Causa  Mortis. 

§  6.  A  donation  causa  mortis,  is  a  gift  of  a  personal  chat- 
tel, made  by  a  person  in  his  last  illness,  subject  to  an  implied 
condition,  that  if  the  donor  recovers,  the  gift  shall  be  void. — 
3  Binn.  370.  So,  it  is  void  if  the  donee  die  before  the  donor. — 
Und. 

To  constitute  a  good  donation  causa  mortis,  it  is  not  necessary 
that  the  donor  should  be  in  such  extremity  as  is  requisite  to  give 
eflfect  to  a  nuncupative  will.    2  Wh.  17. 

Such  a  gift  may  be  evidenced  by  a  writing  not  under  seal.  2 
Wh.  17. 

This  amphibious  species  of  gift  (or  legacy,)  so  far  partakes  of 
the  nature  of  a  legacy,  as  to  be  ambulatory  and  imperfect  during 
the  life  of  the  donor — and  it  is  therefore  revocable.  1  P.  Wms. 
406;  3  Binn.  370.  It  cannot  prevail  against  creditors. — Comstock, 
191. 

It  differs  from  a  legacy  in  this,  that  it  does  not  require  the  as- 
sent or  any  other  act  of  the  executor  to  perfect  the  right  of  the 
donee.  Because,  there  must  be  a  delivery  by  the  donor,  either 
victual  or  symbolical,  of  the  subject  intended  to  be  given.  A  de- 
livery of  the  mere  evidence  of  the  thing  to  be  given  in  lieu  of  the 
thing  itself,  is  not  sufficient.  Therefore  a  promissory  note  can- 
not be  the  subject  of  such  a  gift,  unless  it  be  a  cash  note,  as  a 
hank  note,  or  bond — 3  Binn.  366 — (because,  the  latter  is  a  speci- 
alty, but  where  the  distinction  between  specialties  and  simple 
contracts  is  abolished,  this  distinction  does  not  exist — Comst.  191; 

1  Cowp.  598) — or,  a  treasury  warrant  of  the  government. — 2  Ves. 
431;  3P.Wms.356;  2 Bro. Ch. C. 612;  3Atk.214;  Pre.Ch.300; 

2  Ves.  HI.  ^ 

23 


178  ,  LEGACY.  [CH.  XXVIL 

The  better  opinion  is,  that  where  delivery  is  not  proved,  a  deed 
is  good  evidence  of  the  gift  without  delivery.     1  Ves.  Jun'r.  11; 

1  ib.  314. 

If  a  person  draws  a  check,  and  makes  an  endorsement  on  it^ 
necessarily  supposing  death,  this  appointment  will  be  considered 
good,  as  in  the  nature  of  a  donation  causa  mortis. — 1  P.  Wms, 
441 — As,  that  the  appointee  shall  buy  mourning  with  it.     Ibid. 

2  Ves.  111.* — Or  if  testator  executes  a  note — City  of  New- York, 
Law  Reporter,  June,  1846,  p.  76 — and  1  Paige,  318;  1  Cowen, 
598. 

§  7.  The  making  of  a  will  after  an  alleged  donation  causa  mor- 
tis, is  not  conclusive  against  the  donee.  2  Wh.  17.  On  the  18th 
Oct.  1832,  A.  then  labouring  under  a  complication  of  disorders, 
of  which  he  died  on  the  1st  November  following,  delivered  two 
watches  to  B. — On  the  22d  Oct.  1832,  A.  executed  a  paper  writ- 
ing in  the  form  of  a  will,  by  which  he  gave  the  two  watches  to  B. 
in  whose  "possession,"  he  proceeded,  "  I  myself  placed  said  arti- 
cles." On  the  29th  of  October,  A.  executed  a  will,  by  which  he 
gave  all  his  property  absolutely  to  C. — Held,  that  B.  was  entitled 
to  retain  the  watches.    2  Wh.  17. 

Where  a  will  disposing  of  all  the  testator's  estate  real  and  per- 
sonal, was  made  seven  days  after  an  alleged  donation  causa  martis 
— Hdd,  the  party  claiming  under  the  will,  was  entitled  to  recov- 
er the  chattel  from  the  party  claiming  it  under  the  donation.  1 
M.  90. 

CUMULATIVE    LEGACIES. 

§  8.  Legacies  may  be  cumulative — As,  where  a  testator  has 
twict  bequeathed  a  legacy  to  the  samt  person,  it  becomes  a  ques- 
tion, whether  the  legatee  shall  take  both,  or  only  one. 

Whether  cumulative  or  not,  is  a  question  of  intention. 

Extrinsic  evidence  is  admissible,  as,  if  after  the  first  legacy,  the 
testator  receives  a  large  accession  to  his  estate,  another  legacy  of 
a  like  sum  in  a  codicil,  may  be  cumulative.     1  P.  Wms.  423. 


•Where  the  testator  gives  a  legacy  by  his  will,  and  to  secure  the  legatee  a  pre- 
ference over  the  widow,  gives  his  bond  to  the  legatee  during  his  life-time,  this  is 
a  legacy  in  diigime.  The  bond  will  have  no  greater  effect  than  legacies.  2  Rand. 
508. 


CH.  XXVII.]  LEGACY.  179 

Where  there  are  two  legacies  of  the  same  sum,  to  the  same  per- 
son, in  the  same  will,  the  latter  is  held  to  be  a  substitution  for  the 
former,  and  not  cumulative,  unless  there  be  some  evident  inten- 
tion of  the  testator  that  they  should  be  so  considered ; — and  it  is 
im^  the  legatee  to  prove  such  intention,  and  thereby  rebut  the  le- 
gal presumption  to  the  contrary.  10  John.  R.  155;  4  Harr.  128. 
Presumption  either  way  is  to  be  controlled  by  internal  evidence 
and  the  circumstances  of  the  case.     Ibid. 

Where  the  sam^ thing  is  bequeathed  several  times,  it  is  neces- 
sarily but  one  and  the  same  legacy.  When  the  like  quantity  is 
bequeathed  by  one  and  the  same  instrument,  it  is  but  one  legacy. 
10  John.  R.  156. 

And,  if  an  unconditional  legacy  is  given  by  a  third  testamen- 
tary paper,  it  is  a  substitution  for  the  same  amount,  given  by  the 
first.     Comst.  197. 

§  9.  If  the  legacies  be  of  unequal  quantities  in  the  same  in- 
strument, or,  if  of  equal  and  unequal  quantities  in  different  in- 
struments, they  are  not  merged  in  each  other,  but  are  cumula- 
tive. Ibid.  And  in  such  case,  the  presumption,  in  favor  of  the 
legatee,  (i.  e.  that  they  are  cumulative,)  must  be  rebutted  by  the 
executor.     10  John.  R.  156;  4  Harr.  128. 

And  where  the  same  sums  are  payable  at  several  times,  and  on 
different  contingencies,  they  are  cumulative — So  also,  where  one 
sum  is  payable  on  a  contingency  and  the  other  not.   4  Harr.  128.* 

Where  a  bequest  was  in  the  following  words — "  I  do  give  and 
bequeath  unto  my  two  grand-daughters  each  four  hundred  dol- 
lars, to  be  paid  to  them  by  my  executors.     If  they  are  not  of  age 


•A  testator  by  five  several  codicils  to  his  will,  made  different  bequests  in  favor 
of  his  nitural  children,  which  if  they  had  stood  alcne,  would  have  been  cumula 
tive:  Then,  by  a  6th  codicil,  after  referring  to  and  republishing  his  will,  and  his 
3d  codicil  by  which  he  had  merely  revoked  the  appointment  of  a  trustee,  and  an- 
other codicil,  which  tho'  referred  to  by  a  wrong  date,  was  construed  to  mean  his 
5th  codicil,  by  which  he  had  made  special  provision  for  all  his  natural  children! 
and  after  r<'citing  that  he  had  by  one  or  both  of  said  codicils,  in  a  sufliicient  man« 
ner,  provided  for  a  natural  daughter,  therein  named,  and  was  desirous  of  making 
a  similar  provision  for  two  other  natural  daughters,  gave  to  them  an  estate  similar 
in  all  respects  to  that  given  by  his  codicil  or  codicils  to  his  other  daughter,  and 
declared  they  should  have  the  same  provision,  as  he  had  heretofore  made  for  hit 
other  daughter — I^ld,  all  the  daughters  were  entitled  to  the  legacy  contained  in 
the  5th  codicil,  and  no  other.  Robbey  »».  Robbey — 2  English  Cases  in  Law  ao4 
Equity,  132'. 


180  LEGACY.  [CH.  XXVII. 

at  my  decease,  I  order  my  executors  to  pay  out  of  my  estate  to 
Christina,  four  hundred  dollars,  one  year  after  my  decease,  and  to 
Deborah,  four  hundred  dollars,  two  years  after  my  decease — Held, 
these  legacies  were  cumulative,  and  each  girl  was  entitled  to  eight 
hundred  dollars.    4  Harrison,  128. 

LEGACY ADEBTPTION  OF, 

§  10.  If  a  testator  sell  a  specific  thing  devised  by  him  volun- 
tarily, it  is  an  ademption  of  the  legacy.  Swinb.524,  (See  sec.  11, 
post) 

So,  if  he  sell  a  part  of  a  certain  number  of  shares,  bequeathed 
by  him,  it  is  an  ademption  pro  tanto.  3  Ves.  310;  6  Pick.  48, 49, 
350.  A  legacy  properly  specific,  is  adeemed  by  any  change  in 
its  state  or  form,  eifected  not  by  fraud  or  operation  of  law,  but  by 
the  act  of  the  testator,  whatever  be  its  purpose,  which  makes  the 
corpus  of  the  legacy  at  his  death,  a  different  thing,  from  what  is 
described.    3  W.  337. 

So,  the  collection  of  a  debt,  or  disposition  of  a  chattel  specific- 
ally bequeathed,  by  the  testator  in  his  life-time,  is  an  ademption 
of  a  bequest  thereof,  whatever  be  the  testator's  intention.  7  John. 
Ch.  R.  258— (But  see  1  Wash.  57)— And  see  2  Halst.  414— in 
which  it  is  decided  that  when  payment  is  tendered  to  the  testator 
of  a  debt  specifically  bequeathed,  it  is  not  a  circumstance  from 
which  to  infer  an  intention  to  adeem.  When  he  calls  in  the 
money  himself,  it  is  a  circumstance  from  which  such  intention 
may  be  presumed,  unless  accounted  for  on  other  grounds.  And, 
in  the  case  of  a  general  legacy,  the  intention  of  the  testator  is  of 
the  essence  of  ademption.    15  Pick.  133,  135;  6  ib.  48. 

Where  "all  the  money  due  on  a  bond  against  P.  &  J."  is  be- 
queathed, and  afterwards  the  testator,  at  the  request  of  the  obligor, 
accepted  another  bond  in  lieu  of  the  first,  for  his  accommodation, 
it  is  not  an  ademption  of  the  legacy.    2  Halst.  414. 

A  bequest  of  ^500  to  the  sister  of  the  testator,  after  which  tes- 
tator advanced  and  she  receipted  for  $466,  "  in  part  of  her  right 
of  dower  in  his  will" — held,  this  was  an  ademption  pro  tanto.  15 
Pick.  133, 135. 

Where  there  was  a  legacy  to  testator's  daughter,  of  $215,  to  be 
paid  at  her  marriage,  in  money,  or  such  articles  as  she  might  choose; 


OH.  XXVII.]  LEGACY.  ISl 

and  on  her  marriage  he  furnished  her  with  $149  47,  which  he 
charged  to  her;  and  he  afterwards  paid  $500,  and  took  her  hus- 
band's receipt  for  it  as  part  of  her  portion ;  and  on  the  same  leaf 
where  charges  were  made,  was  found  an  order  of  the  husband  for 
$20,  paid ;  and  by  codicil,  afterwards,  testator  gave  his  daughter 
"  $100  in  addition  to  what  he  had  before  given  her:" — Held,  this 
was  an  ademption  pro  tanto,  being  coupled  with  the  declaration 
that  he  had  paid  off  part  of  her  portion.     14  Pick.  318. 

A  testator  by  his  will  gave  certain  legacies  to  his  grand-child- 
ren, with  whom  he  had  always  lived  on  the  most  intimate  terms, 
and  whose  advancement  in  the  world  had  been  chiefly  at  his  ex- 
pense. He  subsequently  made  settlements  on  the  marriage  of 
each  of  his  grand-children  during  their  father's  life.  The  ques- 
tion was,  whether  the  testator  had  placed  himself  in  loco  parentis, 
towards  his  grand-children,  so  that  the  legacies  were  adeemed  by 
the  settlement — Held,  that  the  settlements  could  not  be  taken  to 
be  in  satisfaction  of  the  legacies.  Pym  vs.  Lockyer,  2  Eng.  Cas. 
in  law  &  Eq.  204. 

But,  where  a  parent,  or  person  in  loco  parentis,  gives  a  legacy 
to  a  child  by  way  of  a  portion,  and  afterwards  makes  advances  in 
the  nature  of  a  portion  to  that  child,  it  will  amount  to  an  ademp- 
tion of  the  legacy,  and  a  court  of  Equity  will  presume  that  the  testa- 
tor meant  to  satisfy  one  with  the  other.  But  this  doctrine  applies 
only  to  legacies,  and  not  to  a  residuary  devise  of  lands.  To  apply 
it  to  lands,  would  contravene  the  statute  of  frauds,  which  requires 
Revocation  to  be  equally  solemn  with  the  Devise.  2  Eng.  cas.  of 
law  &  Eq.  101 — (See  also  ante,  sec.  1,  p.  61.) 

If  portions  be  provided  by  any  means  whatsoever,  and  the  pa- 
rent gives  a  provision,  by  will,  for  a  portion,  it  is,  prima  facie,  sat- 
isfaction, unless  there  be  circumstances  to  show  it  was  not  so  in- 
tended.   3  Murph.  98. 

§  11.  If  a  sale  of  the  chattel  bequeathed  be  compulsory,  it  is 
not  an  ademption  of  the  legacy,  and  the  value  must  come  out  of 
the  residuum.     Swinb.  524;  3  Bacon,  470,  480. 

And  a  legacy  of  shares  in  a  Bank  is  not  extinguished  by  a  vari- 
ation of  the  testator's  interest,  by  operation  of  law.  7  John.  Ch.  R. 
258— (See  sec.  10.) 


182  LEGACY.  [CH.  XXVII. 

LEOACT,  IN  SATISFACTION  OF  A  DEBT. 

§  12.  A  legacy  will  be  presumed  to  be  a  satisfaction  of  a  debt 
from  the  testator,  where  there  are  no  circumstances  showing  a 
different  intention — 1  Green's  Ch.  R.  1 — and  where  the  legacy 
and  debt  are  equal.    5  Cowen  368.* 

This  general  rule  is  not  favored,  and  only  applies  where  no 
presumption  to  the  contrary  can  be  drawn  from  the  face  of  the 
will.  Ibid.  Parol  evidence  is  admissible  to  rebut  this  presump- 
tion— Toll.  337-8 — and  also  to  support  it.  8  Cowen,  246;  3  Mur. 
98;  12  Wend.  352. 

If  the  assets  are  insufficient,  a  legacy  is  always  supposed  to  be 
in  payment  of  a  debt.     Tuck.  Comra.  B.  2,  430. 

But  if  a  legacy  be  less  than  the  testator's  debt  to  the  legatee,  or 
of  specific  articles,  or,  if  provision  is  made  for  the  payment  of 
debts,  the  legacy  will  not  operate  as  a  payment ;  and  in  general, 
it  will  not  operate  as  a  payment,  unless  such  appear  to  be  the  tes- 
tator's intent.  12  Mass.  391.  But  a  legacy  of  equal  or  greater 
value  than  a  debt  from  testator  to  legatee,  is  prima  facie  a  satis- 
faction of  the  debt.  1  Dev.  Eq.  108;  2  Dev.  Eq.  488;  4  Wend. 
443. 

But  where  the  testator  directs  the  executors  to  "pay  all  his  just 
debts,"  and  the  legacy  is  payable  when  the  legatee  arrives  at  age, 
and  the  debt  is,  in  a  measure,  unliquidated,  the  legacy  is  no  sat- 
isfaction of  the  debt.  Tuck.  Comm.  B.  2,  430;  2  Dev.  Eq.  488; 
1  Green's  Ch.  R.  1;  5  Cowen,  368;  2  Hill,  557. 

So,  a  present  debt,  cannot  be  satisfied  by  a  contingent  legacy. 
1  Green's  Ch.  R.  1. 

So,  if  the  legacy  be  unequal  to  the  debt,  or  postponed  till  a  fu- 
ture day.     12  Mass.  395,  399;  6  Rand.  176. 

So,  if  a  legacy  is  of  date  prior  to  the  creation  of  the  debt,  or  if 
the  debt  be  an  unsettled  account,  it  is  no  satisfaction — Toll.  337, 
338 — unless  such  appear  to  be  the  testator's  intention.  8  Cowen, 
246. 

A  legacy  by  a  debtor  to  creditor's  wife,  is  no  satisfaction  of  a 
debt.     12  Wend.  67. 


*The  presumption  that  a  legacy  was  intended  for  a  payment  of  bond  given  by 
testator  K>r  certain  services,  must  rest  on  the  fact  that  the  bond  was  given  for  the 
same  services.    6  Rand.  176;  12  Mass.  395-7. 


CH.  XXVII.]  LEGACY.  183 

Although  generally  a  devise  of  land  is  not  a  satisfaction,  or  part 
performance  of  a  debt  or  agreement  to  settle  money,  yet  if  the  con- 
tract authorizes  such  a  mode  of  making  satisfaction,  it  will  be  so 
decreed,  though  not  stated  in  the  will  to  be  satisfaction.  3  W.C. 
C.R.  48— See  2  Hill,  576. 

§  13.  If  B.  serve  A.  under  expectation  of  a  testamentary  com- 
pensation, and  A.  leaves  him  a  legacy  in  his  will,  it  is  a  satisfac- 
tion, and  B.  cannot  sue  A.'s  executors,  and  take  the  legacy.  2 
Hill,  576;  22  Pick.  480— (and  see  note  to  sec.  12,  ante.)— See  4 
D.  123. 

But  the  acceptance  of  a  legacy,  not  intended  to  operate  as  a  sat- 
isfaction of  testator's  debt,  does  not  amount  to  an  extinguishment 
of  it.  The  circumstance  of  the  case  must  be  such  as  to  warrant 
the  conclusion,     12  Wend.  349.* 

The  rule  does  not  apply  to  next  of  kin,  who  is  presumed  to  take 
under  the  law  and  not  the  will.  1  Dev.  &  B.  334,  And  the  ac- 
ceptance of  a  legacy  under  a  will,  will  not  prevent  the  legatee 
from  setting  up  any  claim  he  may  have  to  any  property  bequeath- 
ed to  another  person,  in  the  same  will,    2  Dev.  &  B,  115, 

§  14,  If  a  creditor  makes  his  debtor  his  executor,  it  is  a  release 
of  the  debt,  except  as  against  creditors  of  the  testator.     Toll,  338. 

Where  a  testator  leaves  a  legacy  to  his  debtor,  whose  debt  is  less 
than  the  legacy,  the  legatee  is  considered  as  having  so  much  of 
the  assets  in  his  hands  as  the  debt  amounts  to,  and  satisfied  pro 
tanto; — and  where  the  debt  exceeds  the  legacy,  the  executors  of 
the  testator  are  entitled  to  retain  the  legacy  in  part  discharge  of 
the  debt.     12  Wend,  67, 

By  act  of  Mississippi,  it  is  enacted,  that  "in  no  case  shall  an 
executor  or  administrator  be  allowed  to  retain  for  his  own  claim 


*A  testator  who  was  indebted  to  his  sons  A.  &B.  in  a  sum  equal  to  about  $1400, 
bequeathed  to  A.  some  small  specidc  legacies,  and  one-fourth  of  the  residue  of  his 
estate,  alter  certain  devit^es  and  leijacifs.  The  will  further  declared — "  Wherens 
my  son  B.  is  indebted  to  me  in  sundry  sums  advancfd  for  his  benefit; — my  will 
is,  that  all  his  debts  to  me  be  cancelled,  and  I  bequeath  to  him  the  sum  of  $500, 
tnd  no  more."  At  the  time  of  testator's  death,  B.  was  indebted  to  him  in  the 
•um  of  $10,000,  and  upwards,  and  ho  had  previously  received  from  the  testator 
tgift  ol  stock,  to  the  value  of  $6,000.  The  testator  left  real  and  personal  prop- 
erty to  the  amount  of  $255.000, — Held,  the  bequests  did  not  amount  lo  a  satis- 
faction of  the  debt  due  by  the  testator  to  his  sons.  3  S.  &  R.  54 — and  see  4  D. 
423. 


184  LEGACY.  [CH.  XXVII. 

against  the  deceased,  unless  the  same  be  passed  by  the  Court  of 
Probates ;  and  every  such  claim  shall  stand  on  an  equal  footing 
with  other  claims  of  the  same  nature"  How.  &  H.  411 — (Act  of 
1821.) 

Under  this  act,  a  debtor  cannot,  even  under  the  pretext  of 
considering  a  legacy  to  himself  a  satisfaction  of  his  claim  against 
the  testator,  acquire  any  preference  over  other  creditors. 

And  by  act  of  1821,  it  is  provided  further,  that  "the  bare  nam- 
ing of  an  executor  in  a  will,  shall  not  operate  to  extinguish  any  just 
claim,  which  the  deceased  had  against  him ;  but  it  shall  be  the 
duty  of  every  such  executor,  accepting  the  trust,  to  give  in  such 
claim  in  the  list  of  debts ;  and  on  his  failure  to  give  in  such  claim 
or  any  part  thereof,  any  person  interested  in  the  administration, 
may  allege  the  same,  by  petition  to  the  Probate  Court  granting 
the  administration,  and  the  said  Court  with  consent  of  the  parties 
may  decide  on  the  same ;  or  it  may  be  referred  by  the  parties, 
with  the  approbation  of  the  Court ;  or  at  the  instance  of  either 
party  the  Court  may  direct  an  issue  or  issues  to  be  tried,"  &c. — 
See  How.  &  H.  404,  and  1  Howard's  R.  68 — (and  see  Inventory, 
post.) 

LEGACY,    LAPSE    OF. 

§  15.  For  definition  of  lapsed  legacy,  and  statute  of  Mississippi, 
in  relation  thereto — see  ante,  page  150,  sec.  6,  citing  H.  &  H. 
eh.  36,  p.  386,  act  of  1821. 

In  Massachusetts,  it  has  been  decided  that  "  under  statute  of 
1783,"  providing  that  "where  any  child,  grand-children,  or  other 
relation,  having  devise  of  real  or  personal  estate,  die  before  the 
testator,  leaving  lineal  descendants,  such  descendants  shall  take 
the  estate  in  the  same  manner,  that  such  devisee  would  have 
done,  if  he  had  survived  the  testator" — if  the  devisee  die  before 
the  testator,  leaving  no  lineal  descendants,  a  legacy  to  him  lapses. 
18  Pick.  41;  7  Mass.  86. 

§  16.  Where  a  devise  is  to  A.  and  his  heirs,  or  a  legacy  to  A. 
and  his  executors,  the  intention  is,  A.  shall  take  an  interest  trans- 
missible at  his  death  to  his  heirs  or  representatives ;  but  as  this 
cannot  be  if  he  dies  before  the  testator,  there  will,  in  that  event 
be  no  devise  or  bequest,  unless  it  be  plain  that  the  testator  intend- 
ed that  the  heirs  or  executors  should  then  take,  when  they  take 


CH.  XXVII.]  LEGACY.  ,  185 

directly  from  the  testator.    6  Dana,  52.    The^  general  rule  is  this, 
viz: 

Where  an  estate  is  devised  to  one,  and  in  case  he  dies  without 
issue,  then  to  another,  and  the  first  devisee  dies  in  the  life-time  of 
the  testator,  the  devise  does  not  lapse,  but  passes  to  the  second  de- 
visee.    1  Dana,  43, 

A  father  devised  to  his  son,  one-third  of  his  real  estate,  and  to 
his  three  daughters  the  remaining  two-thirds.  Two  of  the  daugh- 
ters died  during  the  life-time  of  the  testator. — Htld:  the  land  de- 
vised to  the  two  deceased  daughters,  did  not  lapse,  or  go  to  the 
surviving  daughter,  but  to  the  son,  the  surviving  daughter  and  a 
daughter  to  whom  no  land  was  given  by  the  will, — equally,  as 
heirs  of  the  deceased  daughters. — 2  Yerg.  341.  (Query — would 
it  not  be  otherwise  under  the  statute  of  Mississippi  ?) — or  would 
the  same  rule  prevail  under  the  words  "the  estate  so  bequeathed 
shall  vest  in  such  child  or  descendant,  of  such  legatee,  in  tht 
same  manner,  as  if  such  legatee  had  survived  the  testator,  and 
had  died  unmarried  or  intestate."  Can  the  "descendant"  meant 
here  be  "  ZzwcaMescendant"  of  the  deceased  legatee,  when  it 
is  also  provided  that  the  legacy  shall  go,  as  if  he  had  died  "un- 
married?" If  collateral  relations,  on  whom  the  property  might 
descend  are  meant,  the  law  under  our  statute  would  be  the  same 
as  the  rule  established  in  the  foregoing  decision,  in  Tennessee, 

In  North-Carolina,  it  is  decided,  that  if  A,  bequeaths  his  per- 
sonal property  to  his  Jive  daughters,  naming  them,  "to  them  and 
their  disposal,"  and  three  of  the  daughters  die  in  the  life-time  of 
the  testator,  the  shares  given  to  those  who  died  are  to  be  distribu- 
ted among  the  next  kin  of  the  testator,  as  lapsed  legacies,  and  do 
not  survive  to  the  other  two  daughters,     1  Murphy,  190,  (1808.) 

§  17.  Lapsed  legacies  goto  the  residuary  legatee — and  lapsed 
devises  of  land,  to  the  heir.    5  Pick.  528,  537,  538. 

So,  of  a  devise,  void  for  incapacity  of  the  devisee.  Ibid.  But 
not  if  the  devisee  dies,  or  becomes  incapable  after  making  the 
will.  Ibid.    And  see  2d  How.  337. 

A  general  gift  of  the  residue  includes  legacies  not  effectually  dis- 
posed of,  whether  they  fail  by  lapse  or  illegality,  unless  the  will 
clearly  shows  a  different  intention.     1  Dev.  &  Batt.  Eq.  113. 
24 


186  LEGACY.  [CH.  XXVU. 

The  general  rule  is,  that  lapsed  legacies  of  chattels  pass  under 
a  general  residuary  bequest;  but  this  rule  does  not  apply  where 
the  residuary  bequest  is  of  a  particular  fund,  or  description  of 
property,  or  other  certain  residuum.     1  Hill's  Ch.  R.  97.* 

Nor  does  a  lapsed  legacy  fall  into  a  residue,  which  is  only  par- 
tial in  its  nature,  though  it  requires  very  special  words  to  deprive 
a  residue  of  its  general  character.  Where  a  residue  "consisting 
of  crop,  stock,  and  furniture"  was  given,  it  was  held,  that  a  lapsed 
legacy  of  a  slave  did  not  fall  into  it,  but  was  subject  to  distribu- 
tion under  the  statute.     I  Dev.  &  Batt.  Eq.  393. 

Merely  charging  the  residue  with  the  payment  of  legacies,  will 
not  prevent  those  which  fail  for  any  cause  from  sinking  into  it. 
I  Dev.  &  Batt.  Eq.  113. 

The  ancient  decisions  say,  in  regard  to  bequests  of  the  residue, 
that  the  testator  intended  to  pass  only  that  which  was  left,  after 
taking  out  the  legacies,  and  that  the  executor  or  next  of  kin  take 
the  lapsed  legacies.  And  the  modern  say,  that  the  testator  in- 
tended his  residuary  legatees  should  take  all  that  does  not  pass 
under  the  will — no  matter  from  what  cause  there  may  be  a  re- 
sidue. Both  are  founded  on  the  supposed  intention  of  th^  testa- 
'tor ; — neither  of  them  say,  that  a  legatee  can  take  without  or  con- 
trary to  an  intent.  Therefore,  where  a  testator  bequeathed  to  his 
nieces,  "the  residue  of  his  properly  not  disposed  of,  except  his 
negro  woman  Jinny,"  and  in  a  codicil  to  his  will,  directed  "that 
his  negro  woman  Milly  be  left  precisely  as  his  negro  woman 
Jinny  was  left  in  his  will  ;•'  and  Milly  had  a  child  after  the  death 
of  the  testator,  this  child  belongs  to  the  next  of  kin,  and  not  to  his 
residuary  legatees.     3  Murphy,  597. 


•A  testator  bequeathed  tohis  wife  one-^a//"of  his  negroes,  household  furniture, 
stock,  money,  debts,  &.c.  and  to  his  sistei'd  children,  {naming  them.)  "all  the 
rest  of  my  negroes  and  their  increase;"  and  adds,  "ail  ihe  restot  my  prupeny  no^ 
disposed  of,  I  wish  sold  at  public  sale,  and  the  proceeds  divided  among  the  sjid 
children,  and  the  rest  of  my  money  on  hand  and  owinv,  I  wish  to  be  disposed  uf 
in  the  same  manner."  The  testator's  wife  dird  in  his  lilt-time,  so  that  the  legacy 
to  her  lapsed. — Held:  the  words,  "all  the  rest  of  my  property,"  must  be  under> 
stood  as  exclusive  ot  the  negroes,  money,  and  debts  ''ue,  and  as  coveiing  only  the 
household  furniture,  stock,  moveables,  and  chottelsof  that  class  of  property ; — that 
nothing  else  of  the  lapsed  legacy  but  property  of  this  description,  passed  under 
the  residuary  bequest,  and  the  negroes,  and  money,  and  debts  due,  descended  to 
the  heirs  general.     1  Hill's  Ch.  R.  98. 


CH.  XXVII.]  LEGACY.  187 

A  bequest  of  slaves,  with  the  request  that  the  legatee  will  per- 
mit "said  negroes  to  have  the  result  of  their  own  labours,"  is  a 
bequest  for  emancipation,  and  a  trust  in  them  results  for  the  re- 
siduary legatee  or  next  of  kin.     I  Dev.  &  Batt.  Eq.  113,  [1835.] 

In  Mississippi,  it  has  been  decided,  that  "where  the  .testator 
made  several  specific  bequests,  and  also  manumitted  several 
slaves  contrary  to  law  and  the  policy  of  the  State,  the  slaves 
should  go  to  the  residuary  legatee,  and  not  to  the  heir-at-law.  2 
How.  337;  2  Sm.  &  M.  60. 

The  residuary  legatee  is  entitled  to  take  whatever  may  by  lapse, 
invalid  disposition,  or  other  casualty,  fall  into  the  residue  after 
the  date  of  the  will.  Ibid.    See  also  2  Sm.  &  M.  30;  ib.  60. 

When  it  is  plain  from  the  language  of  the  will  that  the  testator 
intended  to  constitute  certain  persons  residuary  legatees,  not  of 
his  estate,  but  only  of  proceeds  of  property  directed  to  be  sold, 
and  in  part  appropriated  to  other  objects,  then  whatever  may  by 
lapse,  invalid  disposition,  &c.  fall  into  the  residue  after  the  date 
of  the  will,  will  go  to  the  next  of  kin.  2  Sm.  &  M.  60.  Or,  where 
the  property  undisposed  of  is  excepted  out  of  the  residuary  de- 
vise,   lb.  and  2  Dess.  127. 

LEGACY ABATEMENT  OF. 

§  18.  If  the  personal  estate  undisposed  of  by  legacies  be  insuf- 
ficient to  pay  all  the  debts,  and  the  expense  of  settling  the  estate, 
then  the  legacies  must  abate,  as  follows : — 

1st.  The  general  legacies  in  equal  proportions.* 

2d.  The  specific  legacies.  [See  1  How.  533. 

If  however  the  testator  give  a  specific  and  pecuniary  legacy, 
and  'direct  the  latter  to  be  paid  out  of  all  his  personal  estate,  and 
there  be  no  personal  estate  except  the  specific  legacies,  they  shall 
be  subject  to  the  pecuniary  legacies,  as  otherwise  the  latter  would 
be  nugatory.  2  Fonb.  377,  378.  So,  where  he  devises  all  specif- 
ically. I  Dev.  Eq.  87,  320.  But  if  the  testator  does  not  give  a- 
way  the  whole  of  his  property  specifically,  and  what  is  left  after- 
wards is  consumed  or  destroyed,  by  the  testator,  or  his  executor, 

*Legacicsforanionuinent  in  discharge  of  a  debt  of  piety,  does  not  abate  with 
the  other  legacies.  1  P.  Wms.  423.  Su,  a  legacy  to  the  poor  as  doles  of  the  funer- 
al.   2ib.25. 


188  LEGACY.  [CH.  XXVIl. 

this  circumstance  will  not  make  the  specific  legacies  abate; — 1 
Dev.  Eq.  320 — and  to  determine  whether  a  specific  legacy  shall 
abate,  evidence  dehors  respecting  the  assets,  is  admissible.    Ibid. 

§  19.  Of  general  legacies  those  abate  first  which  are  payable 
out  of  the  surplus,  being  founded  in  a  presumption  which  proves 
to  be  erroneous.    2  P.  Wms.  23. 

So,  as  a  specific  legacy  may  be  carved  out  of  particular  chattel, 
if  the  chattel  prove  deficient  the  legacy  will  abate ;  and  in  case 
of  a  deficiency  of  general  assets,  specific  legacies  abate  propor- 
tionately inter  se.    2  P.  Wms.  382;  I  Hayw.  228. 

But,  in  either  case,  the  liability  of  the  legatee  extends  only  to 
the  legacy  in  specie,  and  not  the  hire.  2  Hill's  Ch.  R.  466.  But 
if  he  do  not  contribute  on  demand,  he  will  be  liable  for  interest. 
2  Murph.  92. 

Where  there  was  a  devise  to  the  plaintiff  of  cash  sufficient  in 
the  opinion  of  the  executors,  not  exceeding  ^1 ,000,  to  purchase  a 
tract  of  land,  and  in  a  following  clause,  a  devise,  thus — "  I  give 
to  my  wife  all  the  negroes  I  obtained  in  marriage  with  her,  and 
their  increase,  also  one-third  of  my  stock,  &c.,  and  the  residue  I 
give  to  my  children  by  my  present  wife" — The  estate  is  exhaust- 
ed, except  the  negroes  contained  in  the  residuary  clause  to  the 
wife  and  children,  and  debts  to  a  large  amount  remain  unpaid. — 
Plaintiff  claims  his  $1,000 — Held,  that  the  plaintiff's  legacy  is 
general,  but  still  to  be  paid  out  of  the  residuary  part  devised  to 
the  wife  and  children,  which  being  a  residuum  can  never  be  spe- 
cific ;  that  the  children's  part  is  to  be  first  applied,  as  the  wife's 
part,  though  general  and  residuary  as  to  the  plaintiff,  is  specific 
as  to  them ;  and  that  as  the  testator,  in  mentioning  the  sum  of 
one  thousand  dollars  for  the  plaintiff,  contemplated  a  full  enjoy- 
ment by  the  legatees  of  their  respective  legacies  of  slaves ;  there- 
fore, under  the  discretionary  power  given  to  the  executors  of  fix- 
ing the  amount  to  be  paid  by  the  plaintiff,  the  Court  will  direct, 
that  his  legacy  shall  be  abated  from  $1,000,  in  proportion  to  the 
value  of  the  negroes,  that  shall  be  required  to  pay  the  debts.  1 
Hayw.  228. 

And  where  testator  directed,  amon*  other  bequests,  as  follows: 
"after  my  debts  are  paid,  it  is  my  will  and  desire  that  my  stock 


CH.  XXVII.]  LEGACY.  -       189 

of  hogs  and  cattle,  my  notes  and  accounts,  shall  go  to  U.  W." — 
Held,  that  the  executor  properly  paid  the  debts  out  of  the  undis- 
posed surplus,  and  not  out  of  the  legacy  thus  left  to  U.  W.  2 
Hayw.  304. 

A  bequest  of  "all  the  notes  of  hand  that  will  be  remaining  af- 
ter paying  off  all  the  legacies  hereinbefore  given,  which  I  suppose 
will  be  from  twenty  to  thirty  thousand  dollars,"  is  so  far  specific, 
that  the  legacy  is  to  be  applied  to  the  payment  of  the  general  le- 
gacies, only  in  the  event  of  the  undisposed  of  residue  being  in- 
sufficient for  their  discharge.  2  Dev.  Eq.  488.  See  also  1  How. 
535,  in  which  A.  by  his  will  gave  to  his  brother  B.  three-eighths 
of  all  his  estate;  also  gave  several  pecuniary  legacies,  and  the  bal- 
ance of  his  effects  of  every  description  to  be  equally  divided  a- 
mong  testator's  nephews  and  nieces — no  provision  was  made  for 
payment  of  debts — held,  B.  is  entitled  to  three-eighths  of  all  the 
estate  after  the  payment  of  debts.     Fisk  vs.  McNeill. 

§  20.  The  whole  estate  of  a  deceased  person  being  liable  to  the 
creditor,  if  owing  to  the  removal  of  one  or  more  of  the  legatees 
from  this  State,  or  any  other  cause,  the  estate  of  the  testator  in  his 
or  their  hands,  cannot  be  reached  by  the  creditors  here,  the  other 
legatees,  within  the  reach  of  the  process  of  the  Court,  are  liable 
to  the  creditor  for  his  whole  debt,  if  their  legacies  amount  to  so 
much ;  and  if  one  legatee  pays  more  of  a  testator's  debt  than  an- 
other, it  is  a  question  of  contribution  between  him  and  the  other 
legatees.    1  Murph.  176. 

Descended  land  must  exonerate  specific  legacies  from  all  liabil- 
ity for  payment  of  debts,  for  which  the  heir  is  bound.  2  Dev.  Eq. 
173. 

§  21.  Legatees,  in  certain  instances,  are  bound  to  refund  ratea- 
bly  to  the  executor — as,  in  case  of  deficiency  of  assets,  for  payment 
of  debts. 

If  the  deficiency  be  only  for  the  payment  of  legacies,  the  execu- 
tors can  require  legatees  to  refund  where  the  payment  was  com- 
jmlsory;  but  if  voluntary,  the  law  presumes  admission  of  a  suffi- 
ciency of  assets,  and  the  other  legatees  can  resort  only  against 
him — unless  he  be  insolvent,  when  equity  will  aid  the  legatees 
against  a  co-legatee  who  has  been  paid. 

Even  if  payment  be  voluntary,  executor  may  compel  the  lega- 


190  LEGACY.  [CH.  XXVII. 

tee  to  refund,  if  the  deficiency  is  created  by  debts  which  did  not 
appear  at  time  of  payment.    I  Ch.  Cas.  133. 

And  if  a  legatee  obtain  a  decree  for  his  legacy,  the  other  lega- 
tees may  compel  him  to  refund,  if  assets  were  originally  insuffi- 
cient, and  the  deficiency  not  subsequently  created  by  waste  of  the 
executor.  In  the  latter  case  the  legatee  shall  enjoy  the  fruits  of 
his  diligence.    2  Vern.  205. 

In  order  to  protect  executors  and  administrators  against  the  con- 
sequences of  paying  legacies  before  final  settlement,  the  law  of 
Mississippi  entitles  them  to  require  a  refunding  bond,  condition- 
ed to  refund  a  due  proportion  of  any  debts  or  demands  which 
may  afterwards  appear  against  the  intestate,  and  the  costs  attend- 
ing the  recovery  of  such  debts.  How.  &  H.  406.  But  this  priv- 
ilege is  limited  to  cases  of  payment  before  final  settlement. — 
How.  &  H.  406. 

ASSENT   OF   EXECUTOR. 

§  22.  An  executor  may  assent  to  a  legacy  even  before  probate; 
4  Dana,  248 — and  it  may  be  express  or  implied,  proved  directly, 

or  inferred  from  circumstances — lb.  303 — as  if  he  offer  money  for 
the  legacy.     Ibid. 

Where  the  executor  himself  purchases  a  legacy  from  the  lega- 
tee, the  act  amounts  to  an  assent ; — but  this  is  only  where  the  le- 
gatee's share  in  the  thing  itself  is  transferred  for  value,  and  not 
where  such  transfer  is  nominal  and  voluntary,  and  only  of  a  con- 
tingent interest  of  the  legatee  while  the  executor's  right  contin- 
ues. 4  Dana,  303.  The  latter  species  of  transfer  is  a  fact  from 
which  assent  may  or  may  not  be  inferred,  according  to  other  cir- 
cumstances, lb.  305.  The  amount  of  consideration  is  a  circum- 
stance to  explain  the  nature  of  the  transfer.  lb.  305.  See  also  3 
Dev.  399;  4  Dev.  257;  1  Dev.  &  Batt.  260. 

The  acquiescence  of  an  executor  in  the  possession  of  one  who 
has  a  specific  legacy  at  the  testator's  death,  vests  the  property 
without  a  formal  consent — if  there  be  assets  enough  for  payment 
of  debts.    6  Pick.  125. 

It  is  a  uniform  rule  that  where  any  thing  remains  to  be  done 
by  executors,  their  assent  to  the  enjoyment  of  the  particular  estate 
will  not  imply  their  assent  to  that  in  remainder.  1  Bailey's  S.C. 
Rep.  633;  1  Murphy,  189. 


CH.  XXVII.]  LEGACY.  191 

—  If  A.  be  the  executor  of  B.,  and  the  testamentary  guardian  of 
C.  the  daughter  of  B.,  and  the  testator  gives  a  bond  as  a  specific 
legacy  to  the  daughter,  and  A.  receives  the  bond  and  charges  him- 
self with  it  in  his  account  as  guardian  of  C,  this  is  an  assent. 

An  acceptance  of  the  legatee  is  as  necessary  as  the  assent  of 
the  executor  to  perfect  the  legatee's  right.  1  Bailey's  So.  Car.  R. 
504. 

§  23.  Whenever  an  executor,  or  administrator,  cum  testamtnto 
anntxo,  assents  to  a  legacy,  the  legal  title  passes  to  and  vests  in 
the  legatee,  who  alone  can  maintain  an  action  to  recover  it,  from 
any  person  having  it  in  possession ;  and  the  assent  once  given,  is 
irrevocable  at  law,  even  though  assets  prove  insufficient  for  pay- 
ment of  debts.  6  Dana,  155,  And  the  property  is  not  afterwards 
subject  in  the  hands  of  the  legatee  to  an  execution  subsequently 
obtained  against  the  executor.  2  Hill's  Ch.  R,  459 — But  see  1 
How.  207.  But  a  creditor  of  the  testator  has  an  undoubted  right 
to  pursue  the  legacy  in  the  hands  of  the  legatee,  after  the  assets 
in  the  executors  hands  have,  in  any  way,  been  exhausted.  It 
might  be  different,  if  the  creditor  stood  by  and  saw  the  executor 
dissipating  the  assets  without  making  any  effort  to  save  himself. 
2  Hill's  Ch.  Rep.  432;  1  Dav.  E  \.  337;  2  Dav.  E  \.  cas.  437. 

Until  the  assent  of  the  executor,  the  legal  title  is  in  him ;  and 
if,  before  assent,  he  permit  a  stranger  to  acquire  a  title  under  stat- 
ute of  limitations,  the  legatee  is  also  bound  as  to  the  stranger — 
though  an  infant.     1  Bailey's  So.  Car.  R.  504. 

The  assent  of  the  executor  bona  fide  with  legatees  to  defraud 
creditors,  vests  the  legacy  in  the  legatee  beyond  the  control  of  the 
executor  or  any  creditor  having  to  reach  property  through  execu- 
tion against  executor — and  after  such  assent  a  sale  of  the  legacy 
would  be  void.    2  Hill's  Ch.  R.  522. 

An  executor's  assent  to  the  first  taker  is  an  assent  to  all  subse- 
quent takers  of  a  legacy  limited  over  by  way  of  remainder  in  ex- 
ecutory devise.— 2  Car.  L.  R.  459;  1  Dev.  Eq.  337— Otherwise  if 
after  the  first  taker's  death,  the  executor  has  a  trust  to  perform  a- 
rising  out  of  the  property.  Ibid.     1  Murphy,  189;  1  Bailey,  633. 

If  a  legatee  in  a  will  is  also  executrix,  and  elects  to  take  as  le- 
gatee, her  power  as  executrix  over  the  property  bequeathed  thence 
forward  ceases — her  assent  operates  for  the  benefit  of  the  ulterior 


192  LEGACY.  [CH.  XXVII. 

remainder-man,  and  converts  their  equitable  into  a  legal  estate. — 
N.C.T.R.212.  See  also  3  Murph.  110;  2  Hay.  161;  1  Dev.  & 
Batt.  334. 

Where  a  negro  woman  is  bequeathed  to  A.,  and  her  issue,  if 
she  should  have  any,  to  B.,  the  assent  of  the  executor  to  A.'s  le- 
gacy is  an  assent  to  B.,  and  vests  the  legal  title  in  him — 2  Hawks, 
122 — and  the  executor  may  require  a  bond  for  both.     IMd. 

LEGACY- — TIME  OF  PAYMENT. 

§  24.  An  executor  is  not  compelled  to  pay  legacies  till  a  rea- 
sonable time  has  elapsed  after  the  testator's  death.  In  the  absence 
of  any  statute,  the  civil  law,  which  gives  one  year,  will  afford  the 
rule  of  limitation. 

A  distributee  is  entitled,  after  the  expiration  of  twelve  months 
from  the  grant  of  administration,  by  giving  bond,  or,  if  the  estate 
has  been  settled,  without  giving  bond,  to  distribution.  2  How. 
808,  972;  1  S.  &  M.  546.-  And  the  party  claiming  is  entitled,  if 
at  all,  to  all  immediately ;  and  it  is  error  in  the  Judge  to  permit 
the  administrator  to  retain  property  for  the  purpose  of  gathering 
a  growing  crop.  ,  Ibid. 

A  legacyvmay  be  vested,  though  the  time  of  payment  be  post- 
poned.   2  M'Cord's  Ch.  R.  258;  2  Mur.  140;  2  Dev.  Eq.  98. 

If  a  legacy  be  payable  to  an  infant  at  21  years,  and  he  dies  be- 
fore, his  representatives  cannot  claim  till  in  case  he  had  lived,  he 
could  have  claimed  it.  2  M'Cord's  Ch.  R.  258.  If  payable  out 
of  land,  at  a  future  day,  and  the  legatee  dies  before  payment,  al- 
though given  with  interest  in  the  meantime — the  Court  will  not 
direct  the  legacy  to  be  raised  till  the  time  of  payment;  but  it  will 
secure  a  personal  fund,  for  a  future  or  contingent  legatee.   IMd. 

Where  legacies  are  given  to  several,  to  be  paid  at  their  respec- 
tive marriages,  and  one  dies,  her  portion  will  survive  to  the  oth- 
ers, but  will  not  be  payable  till  the  marriage  of  each — for  the 
condition  survived  also.  2  Vern.  620.  But  where  legacies  are 
given  to  three  or  more  as  tenants  in  common,  with  a  bequest  to 
survivors  on  the  death  of  any  one  of  them  within  a  given  time, 
the  original  legacies  only  and  not  the  shares  which  accrued  by 
survivorship,  will  survive.  3Murphy,21.  An  exception  is,  where 
the  fund  is  aggregate,  and  made  devisable  among  many  persons 
as  legatees  with  benefit  of  survivorship  among  them.     Ibid. 


i 


CH.  XXVII.]  LEGACY.  193 

Where  the  testator  disposed,  by  will,  of  his  whole  estate,  and 
amongst  other  things  bequeathed  certain  negroes  to  W.  H.  C.  du^ 
ing  life,  with  remainder  over,  and  by  another  clause  directed 
"  his  estate  to  be  kept  together  till  his  debts  are  paid,"  it  was  held, 
that  the  testator  only  meant  that  the  absolute  right  of  the  legatees 
should  not  vest  until  his  debts  were  paid ;  tiiat  the  restrictive 
clause  applied  only  to  the  mass  of  his  estate  and  net  to  the  spe- 
cific legacy;  and  the  tenant  for  life  being  dead,  the  tenant  in  re- 
mainder was  entitled  to  immediate  possession  of  the  negroes,  al- 
though the  debts  were  not  paid,  and  could  retain  them  until  the 
rest  of  the  estate  proved  insufficient  to  pay  the  debts.  1  Hill's, 
R,225. 

Where  a  will  directed  the  executors  to  retain  certain  money, 
legacies,  till  the  legatees  came  of  age  or  married,  and  that  exec- 
utors should  not  be  charged  with  interest — the  executors  are  en- 
titled to  hold  and  use  the  money,  free  of  interest  till  the  time  of 
payment.    4  Dana,  573. 

An  action  to  recover  a  legacy  charged  on  real  estate,  cannot  be 
supported  against  the  devisee  and  terre-tenant  without  an  express 
promise  to  pay  it.  4  S.  &  R.  213.  The  action  should  be  brought 
against  the  executor  and  terre-tenants,  and  judgment  be  so  en- 
tered as  to  bind  the  land  only.  Ibid.  Executor  should  be  a  party. 
im.  509. 

If  executor  promise  to  pay  a  legacy  as  soon  as  he  can  sell  cer- 
tain property,  an  action  will  lie  on  such  promise.    2  Hay.  153. 

LEGACY INTEREST   ON   AND  PROFITS  OF. 

§  25.  Where  no  interest  is  allowed  by  the  will,  it  shall  now  be 
allowed  after  the  expiration  of  twelve  months  from  the  death  of 
the  testator.  7  Ves.  jun.  96.*  Interest  will  be  given  on  a  legacy 
payable  to  a  child  at  a  particular  time,  where  no  provision  is  made 
for  its  maintenance,  but  not  to  a  grand-child.    2  John.  C.  200;  5 


•Pecuniary  legacies  on  which  no  interest  is  given  by  the  will,  bear  interest 
from  the  end  of  one  year  after  the  testator's  death; — and  this  applies,  even  where 
delay  in  collecting  debts,  makes  it  impracticable  to  pay  them  a i  that  time.  1 
M'Cord'sCh.R.  148;  5Binney,475;  14S.&.R.238;  6VV.67;  9ib.477;  1  Har. 
370 — Except  in  case  of  a  legacy  to  a  child  not  otherwise  provided  for,  when  in- 
terest is  allowed  from  the  -death  of  the  testator.  Ibid.  The  rule  that  a  child  un- 
provided for  will  be  entitled  to  interest  from  the  testator's  death,  does  not  exjte^4 
«o  ibe  case  of  a  widow.    €  W.  67;  Sai.Ch.  R.40,  ,  v^,r/. 

25 


194  LEGACY.  [CH.  XXVII. 

Binn.  479;  14  S.  &  R.  232;  4  R.  119.  And  a  legacy  to  a  grand- 
child, payable  when  he  comes  of  age,  carries  interest  only  from 
that  period.  Ibid.    2  Dev.  Eq.  366. 

A  legacy  payable  at  a  particular  day,  will  bear  interest  only 
from  that  day.     Toller,  324. 

A  legacy  charged  on  land,  and  no  time  of  payment  mention- 
ed in  the  will,  carries  interest  from  the  time  of  the  testator's  death. 
2  John.  C.  200.   - 

But  a  legacy  to  be  paid  out  of  funds  which  the  executor  is  to 
receive  from  the  devisee  of  the  real  estate,  is  not  a  legacy  charged 
on  the  land.  2  John.  C.  200.  And  where  testator  directed  the  le- 
gacy to  be  paid  out  of  the  increase  of  his  estate,  as  soon  as  con- 
venient after  the  expiration  of  one  year  after  his  decease,  or  soon- 
er if  executor  has  funds,  held,  it  bore  interest  from  one  year  after 
the  testator's  death,  and  the  legacy  was  ordered  to  be  paid,  the* 
some  debts  still  remained  due,  the  estate  being  fully  competent. 
1  M'Cord's  Ch.  R.  148. 

§  26.  The  time  when  interest  shall  be  allowed  on  a  legacy  does 
not  depend  on  the  time  when  it  is  received,  but  when  at  law  it 
may  be  received.     1  M'Cord's  Ch.  R.  98, 148. 

A  residuary  bequest  to  be  paid  when  the  legatee  arrives  at  21 
years,  gives  a  present  vested  legacy,  and  the  legatee  will  be  enti- 
tled to  the  profits  or  interest  (if  any  accrue,)  in  the  interval  be- 
tween the  testator's  death  and  her  attaining  twenty-one.  1  Hill's 
So.  Car.  R.  123. 

Where  a  contingent  legacy  in  remainder  was  given  on  the  le- 
gatee's attaining  twenty-one,  and  assuming  the  surname  of  the 
testator,  and  there  was  nothing  in  the  will  showing  an  intention 
on  the  part  of  the  testator  to  provide  a  fund  for  maintenance  and 
education — Held,  that  the  legatee  in  remainder  was  not  entitled 
to  the  intermediate  profits  of  the  legacy  from  the  death  of  the 
tenant  for  life,  until  the  estate  vested  in  him.  1  Hill's  So.  Car.  Ch. 
R.  227,  237.* 

•The  children  of  a  female  slave  specificiil'y  devited,  which  are  born  after  the 
execution  of  the  will,  and  before  the  death  of  the  testator,  go  to  the  residuary  le- 
gatee.   Conf.  R.  310. 

A  legacy  to  a  child  vested,  but  not  charged  on  land  and  payable  with  interest, 
by  the  terms  of  the  will  at  twenty-one — shall  nevertheless  be  paid  presently  at 
the  death  of  the  child,  should  he  die  before  the  time  of  payment  originally  ap» 
pointed.     1  W.  372. 


CH.  XXVII.]  LEGACY.  195 

Where  negroes  were  specifically  bequeathed  to  two,  and  the 
share  of  one  is  set  apart,  and  a  profit  is  nlade  by  the  administra- 
tor on  the  other  share  reserved  for  an  infant,  this  is  no  severance 
of  the  tenancy  in  common  until  the  infant  arrives  at  the  age  of  21 
years  and  confirms  it,  and  in  the  meantime  this  profit  may  be  re- 
covered in  a  joint  bill  filed  by  the  two  legatees.     1  Dev.  Eq.  67. 

Upon  a  bequest  to  children  as  tenants  in  common,  with  a  post- 
ponement of  the  division,  in  the  absence  of  any  direction  to  the 
contrary,  the  expenses  of  each  is  a  separate  charge  on  his  share 
of  the  profits.    2  Dev.  Eq.  531. 

Where  one  bequeathed  to  the  four  children  of  his  nephew,  the 
sum  of  $400  each,  which  sums  he  directed  to  be  placed  out  at 
interest,  at  the  expiration  of  two  years  after  his  decease,  for  the 
benefit  of  said  legatees  respectively,  and  the  principal  and  inter- 
est to  be  paid  as  they  should  respectively  attain  twenty-one — but 
if  any  one  of  them  should  die  in  his  minority,  without  issue,  the 
share  of  such  child  so  dying  should  be  equally  divided  among  his 
brothers,  it  was  held,  that  the  legatees  were  not  entitled  to  inter- 
est during  their  minority,  but  that  it  must  accumulate,  and  in  case 
of  the  death  of  one  of  the  legatees  under  age,  would  form  part 
of  the  share  to  be  divided  among  the  survivors.     5  Binn.  477. 

§  27.  A  residue,  which  is  given  for  a  life  with  remainder  over, 
must  be  sold  by  the  executor,  and  the  interest  paid  to  the  legatee 
for  life,  and  the  principal  to  him  in  remainder,  because  this  is  the 
only  mode  of  giving  both  sets  of  legatees  the  enjoyment  of  those 
chattels  which  are  perishable.    2Dev.  Eq.421. 

Slaves  are  in  this  State  (North-Carolina,)  an  exception  to  this 
rule,  because  they  are  not  consumed  in  the  use,  and  their  natural 
decay  is  supplied  by  their  issue,  which  goes  to  those  in  remainder. 
lDev.&Batt.Eq.l92. 

A  legatee  for  life  is  bound  to  keep  down  the  interest  of  a  debt 
charged  on  his  legacy,  and  may  be  compelled  to  contribute  to  its 
payment.  But  he  is  not  bound  to  surrender  the  whole  profits  for 
the  purpose  of  extinguishing  it.     1  Dev.  &  Batt.  Eq.  192. 

§  28.  In  Mississippi  it  is  enacted,  that  when  any  person  or 
persons  having  a  legacy  bequeathed  in  any  last  will  and  testa- 
ment, shall  sue  for  and  recover  the  same  either  at  law  or  in  equi- 
ty, as  the  case  may  be,  to  give  judgment  in  case  of  the  decree  of 


196  LEGACY.  [CH.  XXVII. 

the  Court,  and  a  verdict  in  case  of  a  trial  by  jury  for  ten  per  cent, 
damages,  in  addition  to*  the  interest  now  allowed  by  law,  upon 
the  amount  of  money  so  recovered  or  decree4,  and  also  upon  the 
worth  of  property  in  case  of  a  specific  legacy.  Act  of  1839 — 
How.  &H.  p.' 421. 

The  above  rule  as  to  damages,  in  case  of  a  recovery,  shall  ap- 
ply to  suits  by  distributees  against  administrators,  and  wards  a- 
gainst  guardians.  Ibid.     H.  &H.421. 

LEGACY ACTION    FOR. 

§  29.  By  Common  law,  no  action  at  law  lay  for  the  recovery  of  a 
legacy,  and  damages  for  non-payment  of  it.   4  Mass.  634, 635. 

By  act  of  1821,  in  Mississippi,  legatees  are  entitled  at  the  ex- 
piration of  twelve  months  from  the  grant  of  letters  of  administra- 
tion, to  petition  the  Probate  Court  for  and  have  payment  of  lega- 
cy according  to  the  provisions  of  the  act  in  such  cases  made  and 
provided.  How.&  H.  p.  406.  (For  the  act  alluded  to,  see  title 
Distribution,  post) 

As  a  general  rule,  a  suit  for  the  recovery  of  a  legacy  should  be 
brought  against  the  executor  in  the  jurisdiction  having  cognizance 
of  the  will.  Yet  when  the  fund  out  of  which  the  legacy  is  paya- 
ble, is  traced  to  the  possession  of  the  heir  of  the  testator,  in  a  dif- 
ferent jurisdiction  from  that  having  cognizance  of  the  will,  the 
suit  may  be  maintained  there.     1  Sm.  &  M.  Ch.  Rep.  495. 

A  specific  legatee  may  under  our  statute  maintain  a  suit  for  the 
property  or  chattel  bequeathed,  at  law,  and  without  the  assent  of 
the  executor.  The  Common  law  required  a  resort  to  a  Court  of 
Equity;  but  this  is  changed  by  our  statute.     2  Sm.  &  M.  527. 

Assumpsit  will  lie  on  a  promise  of  the  executor  to  pay  a  legacy, 
in  consideration  of  assets.  Cowp.  284 — (5  T.  R.  690,  contra,  and 
also  7  Barn.  &  C.  544.) 

But  the  modern  authorities  sustain  the  case  in  Cowper. 

In  North-Carolina,  if  an  executor  promise  to  pay  a  legacy,  as 
soon  as  he  can  sell  certain  property,  an  action  at  law  will  lie  on 
such  promise.    2  Hayw.  153. 

And  in  Connecticut,  it  has  been  decided  that  an  action  at  law 
will  lie  against  an  executor  who  has  assets,  on  an  implied  promise. 
4  Conn.  163;  6  ib.  170;  7  ib.  132— See  2  Root,  156,  &  in  N.  Jersey, 
lHalst.432;  2Penn.552. 


CH.  XXVII.]  LEGACY.  197 

'i-  In  New- York,  it  has  been  decided  that  an  action  at  law  would 
not  lie  against  the  personal  representatives  of  the  devisee,  upon 
the  mere  implied  assumpsit,  arising  from  the  devise  itself — 3 
John.  R.  189 — otherwise,  if  the  devisee  had  promised  to  pay  it. 
7  ib.  99. 

In  Pennsylvania,  assets  in  the  hands  of  the  executor  are  a  good 
consideration  for  a  personal  promise  to  pay  a  legacy  of  the  testa- 
tor, and  to  charge  him  de  bonis  propriis.  5  Binn,  33.  So,  in  N. 
York — See  7  John.  R.  90;  3  Cowen,  133;  6  ib.  333.  So  payment 
of  part  of  the  devise:    10  John.  R.  30. 

And  a  legacy  charged  on  land,  will  support  an  assumption  to 
pay  it  by  the  devisee.     5  S.  &  R.  216 — (7  John.  R.  90,  query?) 

It  has  been  said  that  before  the  act  of  1806,  assumpsit  did  not 
lie  for  a  legacy.  Since  that  act,  I  can  have  no  doubt.  2  Rawle, 
801 ,  Huston,  J. 

In  an  action  at  law  for  a  legacy,  there  must  be  alleged,  the  be- 
quest, the  probate,  the  official  capacity  of  the  defendant,  his  re- 
ception of  assets,  and  a  demand — 4  Mass.  R.  634.  Either  assets 
or  executor's  assent  must  be  shown — 6  Pick.  126.  A  demand 
must  be  shown — 3  Pick.  213;  14  Mass.  428.  So  in  case  of  a  for- 
feited devise— 21  Pick.  389. 

And  plaintiff  must  allege  a  sufficiency  of  assets  to  pay  all 
debts  and  legacies,  at  the  commencement  of  his  suit.  7  John.  R. 
243. 

§  30.  A  father  cannot,  as  natural  guardian,  demand  and  recov- 
er payment  of  a  legacy  due  to  his  child.  But  if  the  executor  re- 
sists payment  solely  on  the  ground  that  his  child  has  no  claim,  it 
is  a  waiver  of  the  right  of  demand.     3  Pick.  213. 

Where  a  legacy  is  charged  on  real  estate,  the  legatee  can  sue 
for  it.    7  Pick.  296. 

A  husband,  after  his  wife's  death,  may  maintain  an  action  in 
his  own  right,  to  recover  a  legacy  given  to  her  during  coverture. 
22  Pick.  480. 

Where  there  are  several  legacies  given  which  are  to  be  increas- 
ed or  diminished  as  the  estate  should  increase  or  diminish,  one 
legatee  may  file  his  bill  in  his  own  and  other  legatees  behalf,  who 
may  choose  to  come  in  against  the  executor  for  an  account  and 
payment.    4  John.  Ch.  R.  199;  1  Paige,  270.    But  where  the  bill 


198  LEGACY.  [CH,  XXVII. 

is  for  the  residue,  all  the  residuary  legatees  are  to  be  parties  to 
the  bill.    IbU. 

Where  several  suits  are  brought  for  general  legacies,  and  the 
estate  is  insufficient,  the  Court  will  direct  an  account  to  be  taken 
in  one  suit  only,  and  all  the<other  suits  to  be  stayed — 1  Paige,  416. 
The  Court  will  direct  the  account  to  be  taken  in  the  suit  most 
beneficial  to  the  legatees,  and  in  case  of  doubt  about  that,  will  re- 
fer it  to  a  master  to  ascertain  what  suit  is  most  for  the  interest  of 
persons  interested.     Ibid. 

The  children  of  a  deceased  legatee  cannot  recover  without  ad- 
ministering on  deceased  legatee's  estate — 4  Paige,  47. 

Where  a  feme  covert  has  a  contingent  interest  in  personal 
estate,  a  suit  after  her  death  must  be  brought  by  her  adminis- 
trator, but  her  heir  may  sue  for  rents  and  profits  of  land.~~10 
Pick.  462. 

§  31.  Where  a  husband  and  wife  sue  for  the  wife's  legacy,  the 
Court  will  direct  a  suitable  provision  to  be  made  out  of  it,  for  the 
maintenance  of  herself  and  her  children,  before  decreeing  pay- 
ment of -the  legacy  to  her  husband — 4  John.  Ch.  R.  199;  1  Paige, 
270—20  Pick.  378. 

§  32.  Where  plaintiff  in  his  bill  sets  up  a  claim  independent 
of  the  will  to  part  of  the  property  devised  in  trust  to  pay  the  lega- 
cies, he  must  elect  to  waive  his  claim,  or  wait  until  it  be  deter- 
mined before  he  can  call  for  an  account  or  payment  of  part  of  his 
legacy. — 1  Paige,  270. 

§  33.  Where  a  testator  devised  his  real  and  personal  estate  to 
two  of  his  sons,  charged  with  certain  legacies,  and  legatees  filed 
bill  and  obtained  decree  for  sale  of  real  estate,  which,  on  being 
sold,  proved  to  be  insufficient,  and  no  decree  was  prayed  for  in 
the  preceding  suit  charging  the  devisees  personally — htld,  lega- 
tees could  not  file  a  new  bill  for  that  purpose. — 1  Paige,  407. 

§  34.  A  devisee,  who  has  been  compelled  to  pay  a  legacy,  majr 
call  on  a  co-devisee  for  contribution,  but  not  for  any  loss  by  the  in- 
solvency of  other  devisees. — 10  Mass.  450. 

A  devisee,  molested  in  the  enjoyment  of  the  land,  by  the  cred- 
itors of  the  testator,  may  sue  the  executor  for  mal-administration, 
or  his  co-devisees  for  contribution. — 4  Mass,  150,  154. 


CH.  XXVIII.]  PROBATE  OF  WILLS.  199 

§  35.  If  a  legatee  accepts  a  dividend  on  his  legacy  by  order  of 
the  Judge  of  Probate,  where  there  is  enough  to  pay  all,  he  will 
be  concluded  thereby  though  his  legacy  be  specific— 4  Mass.  632. 

§  36.  Courts  of  Equity  can  entertain  no  jurisdiction  over  lega- 
cies till  the  will  has  been  admitted  to  probate  in  the  Court  of 
Probates.--12  Wheat.  169. 


CHAPTER  XXVIII. 


PROBATE  OF  WILLS. 


§  1»  After  the  consummation  of  a  last  will  and  testament,  it 
becomes  necessary  to  have  it  proved  and  registered  in  a  Court  of 
competent  jurisdiction,  which,  in  this  State,  is  the  Court  of  Pro- 
bates. 

But  proof  and  registration  are  not  essential  to  the  validity  of  a 
will.— 3  Marsh.  90. 

§  2.  There  is  no  time  limited  for  proving  a  will — 5  Littel,  273; 
4  Monroe,  153;  lM'Cord,74. 

But  it  is  too  late  to  prove  a  will  of  personalty  after  30  years. — 
So.  Car.  Con.  Repts.  Treadwell's  ed.  505 — 9  Dana,  191. 

And  nuncupative  wills  must  be  proved  within  six  months  from 
the  testator's  death,  unless  the  testamentary  words  were  reduced 
to  writing  within  six  days  after  speaking  the  same.  See  arUt  page 
55,  And  a  nuncupative  will  can  only  be  proved  in  solemn  form 
because  the  statute  requires  a  citation  of  the  next  of  kin — Antt 
p.  55. 

§  3.  A  will  may  be  proved  either  in  common  form — i.  e.  with- 
out citing  those  interested,  and  upon  the  mere  deposition  of  the 
executor — 4  Dev.  430— -or,  in  solemn  form  or  form  of  law,  as 
where  the  widow  or  next  of  kin  to  the  decision  are  cited  to  be 


200  PROBATE  OF  WILLS.  [CH.  XXVIII. 

present,  and  in  their  presence  the  will  is  exhibited,  witnesses  ex- 
amined, their  depositions  published,  and  the  judge  determines 
the  question  of  its  validity. — 4  Dev.  430. 

The  first  kind  of  proof  (in  common  form,)  does  not  excuse  the 
executor  from  proof  in  form  of  law ;  but  the  will  may  afterwards, 
within  a  limited  period,  be  contested  by  any  person  interested,  in 
the  mode  prescribed  by  law.     How. &  H.  sec.  17,  ch.  36,  p.  389. 

§  4.  The  Orphan's  Court  of  each  county  in  this  State  shall  have 
power  to  hear  and  determine  all  causes,  matters  and  controversies 
arising  within  their  respective  jurisdictions,  and  to  examine  and 
take  the  proof  of  wills,  and  grant  letters  testamentary  thereon,  ac- 
cording to  the  provisions  of  this  act. 

Jurisdiction  having  once  attached  will  not  be  affected  by  a  sub- 
sequent division  of  the  county — 2  Marsh.  229;  3  Marsh.  510, 614; 
9  Cranch.  151 — Littel's  Selected  Cas.  461— -and  probate  in  one 
county  is  proof  throughout  the  State — 4  Monroe,  423. 

Where  a  resident  of  Kentucky  dies  intestate  there,  have  no  es- 
tate in  Virginia,  but  a  claim  on  the  Commonwealth  for  money, 
it  was  held,  that  Henrico  county,  where  the  seat  of  government 
was,  had  jurisdiction  to  grant  letters.    2  Leigh,  248. 

But  the  debts  due  from  the  United  States  have  no  locality  at 
Washington  City,  the  Seat  of  Government.  The  United  States 
have  no  particular  domicil,  but  possess  a  legal  ubiquity.  15 
Peters'  R.  1. 

§  5.  I.  If  any  testator  shall  have  a  mansion-house,  or  known 
place  of  residence,  his  or  her  will  shall  be  proved  in  the  Orphan's 
Court  of  the  county  wherein  such  mansion-house  or  place  of  res- 
idence is. 

II.  If  he  or  she  has  no  place  of  residence,  and  lands  be  devis- 
ed in  the  will,  then  the  will  may  be  proved  in  the  Orphan's  Court 
of  the  county  wherein  the  lands  lie,  or  in  one  of  them  where 
there  shall  be  lands  in  both  counties. 

III.  If  he  or  she  have  no  such  known  place  of  residence,  and 
there  be  no  lands  devised,  then  the  will  may  be  proved  either  in 
the  Orphan's  court  of  the  county  where  such  testator  or  testatrix 
died,  or  that  wherein  his  estate  or  a  greater  part  thereof  lie. — 
How.  &  H.  ch.  36,  sec.  17,  p.  388. 


CH.  XXVIII.]  PROBATE  OF  WILLS.  ^  201 

§  6.  "  It  shall  be  lawful  for  any  Orphan's  court,  when  any  will 
is  produced  to  them  for  probate,  and  any  witness  attesting  the 
same  shall  reside  out  of  the  State,  to  issue  a  commission  or  com- 
missions annexed  to  such  will,  and  directed  to  the  presiding  Judge 
of  any  court  of  law,  or  any  Notary  Public,  Mayor,  or  any  Chief 
Magistrate  of  any  city,  town,  corporation  or  county,  where  such 
witness  may  be  found,  authorizing  the  taking  and  certifying  his 
or  her  attestation.  If  the  person  to  whom  such  commission  shall 
be  directed  shall  certify,  in  the  manner  such  acts  are  usually  au- 
thenticated, (for  which  see  How.  &  H,  ch.  46,  sec.  17,  p.  603,) 
that  the  witness  personally  appeared  before  him  and  made  oath 
or  affirmation,  (as  the  case  may  require,)  that  the  testator  or  tes- 
tatrix signed  and  published  the  writing  annexed  to  such  commis- 
sion as  his  or  her  last  will  and  testament,  or  that  some  other  per- 
son signed  it  by  his  or  her  direction,  that  he  or  she  was  of  dis- 
posing mind  and  memory,  and  that  he  or  she  subscribed  his  or 
her  name  thereto  in  the  presence  of  the  testator  or  testatrix,  and 
at  his  or  her  request,  such  oath  or  affirmation  shall  have  the  same 
operation,  and  the  will  be  admitted  to  probate  in  like  manner  as 
if  such  oath  or  affirmation  had  been  made  in  the  court  whence 
such  commission  issued."     How.  &  H.  page  387. 

The  statute  authorizing  a  dedimus  to  take  the  deposition  of  at- 
testing witnesses,  who  reside  abroad,  is  cumulative,  and  does  not 
compel  parties  to  resort  to  it.  Inferior  testimony  may  be  resorted 
to  in  case  of  wills,  as  well  as  in  other  cases,  where  the  best  testi- 
mony is  not  within  reach  of  the  court.  1  Littel,  103, 104;  4  Ran- 
dolph, 585. 

The  statute  does  not  require  that  the  will  shall  be  proved  by 
the  attesting  witnesses  only,  but  it  may  be  proved  as  other  attest- 
ations may  be,  subject  to  the  like  rules  of  evidence.  5  Monroe, 
179;  Powell  on  Devises,  708,  710;  Blackf  R.  563;  Gibb.  R. 
in  Eq.  563;  4  Burr.  225;  1  Con.  S;  Car.  R.  336;  1  Green's  Ch.  R. 
220. 

§  7.  "When  any  will  shall  be  exhibited  to  be  proved,  the  court 
having  jurisdiction  as  aforesaid,  may  proceed  immediately  to  re- 
ceive the  probate  thereof,  and  grant  letters  testamentary."    How. 
&L  H.  ch.  36,  sec.  17 — (See  also  sec.  18  of  same  chap.) 
26 


202  PROBATE  OF  WILLS.  [CH.  XXVIII. 

If,  however,  any  person  interested  shall,  within  five  years  after- 
wards appear,  and  by  his  or  her  bill  in  Chancery,  contest  the  va- 
lidity of  the  will,*  an  issue  shall  be  made  up,  "whether  the  writ- 
ing produced  be  the  will  of  the  testator  or  testatrix  or  not,"  which 
shall  be  tried  by  a  jury  in  the  Circuit  or  Superior  Court  of  the 
county  where  such  will  shall  have  been  recorded,  (or  in  the  court 
of  Chancery,  as  the  Chancellor  shall  direct — but  see  ante,  page 
19,  sec.  3,  and  7  How.  143,  and  note,) — whose  verdict  shall  be 
final  between  the  parties — saving  to  the  Court  the  power  of  grant- 
ing a  new  trial  for  good  cause,  as  in  other  trials.  But  no  such 
party  appearing  within  that  time,  the  probate  shall  be  forever 
binding — saving  always  as  to  infants,  femes  coverts,  persons  absent 
from  the  State,  and  non  compotes  mentis,  the  like  period  after  the 
removal  of  their  respective  disabilities.  In  all  such  trials  by  jury 
the  certificates  of  the  witnesses  at  the  time  of  the  first  probate, 
shall  be  admitted  as  evidence  to  have  such  weight  as  the  jury  shall 
think  it  deserves."  How.  &  H.  ch.  36,  sec,  17 — See  4  Sm.  &  M. 
and  6  Sm,  &  M. 

§  8.  Although  the  statute  requires  three  witnesses  to  a  will, 
one  of  them  may  prove  it — 2  J.  J,  Marsh,  511;  2  Marsh,  467;  Lit- 
tel's  Sel,  cases,  503;  lB,Monroe'sR,57;  2  Nott  &  M'Cord,  588;  4 
Cowen,483;  19  John.  386;  1  Peters,  508;  2  Har,  (N,  J,)  86. 

And  if  one  witness  testify  expressly  to  the  fulfilment  of  every 
ceremony  required  by  statute,  it  is  sufficient — 7  Halsted,  70;  1 
Green's  Ch.  R.  8. 

And  if  admitted  and  recorded  on  the  testimony  of  one  witness, 
it  will  be  presumed  that  he  proved  all  the  requisitions — 1  Green's 
Ch.R.8. 

If  two  of  three  attesting  witnesses  reside  out  of  the  State,  and 
cannot  be  procured  by  any  legal  means,  the  will  may  be  proved  by 
the  remaining  witness,  he  proving  the  hand-writing  of  the  other 
tw6--4  Rand.  585;  2  Green's  Ch.  R.  8;  5  Yerger's  R.  307~~And  if 
two  are  dead  and  a  third  absent  or  lunatic,  proof  of  their  hand- 
writing by  a  credible  witness  will  be  sufficient— -2  Bay.  187;    1 


♦Whenever  the  dispute  is  about  the  fact  of  the  execution,  or  the  sanity  of  the 
testator,  an  issue  is  proper;  but  if  about  the  legality  of  the  execution,  the  Court  it 
the  proper  tribunal,     6  S.  &  R,  489. 


GH.  XXVUI.]  PROBATE  OF  WILLS.  '  208 

M'Cord,74;  11  Wend.  599;  4  ib.  443;  5  Conn.  164;  2Dev.&B. 
211;  3  Y.  345 — U  all  are  dead,  proof  of  the  hand-writing  of  all 
is  requisite  before  proof  of  the  testator's  can  be  allowed — 2  Bay. 
484;  1  M'Cord,  74 — If  all  reside  abroad,  proof  of  the  hand-writ- 
ing of  two  of  them  is  sufficient — 2  No.  Car.  R.  31 1 ;  2  Dev.  &  Bat. 
311:  4  Yeates,  345— If  witness  cannot  be  found,  proof  of  his 
hand-writing  is  admissible — 2  No.  Car.  R.  313— -"If  to  be  found" 
in  the  act  of  1789,  (Tennessee,)  when  speaking  of  witnesses  to  a 
contested  will,  means,  if  to  he  found  by  the,  officer  in  whose  hands 
the  process  is  placed,  and  the  return  of  the  officer  that  the  witness 
cannot  be  found,  is  evidence  of  that  fact— 5  Yerger,  307. 

The  act  of  1789,  (N.  Carolina,)  requiring  a  will  when  contest- 
ed, to  be  proved  by  all  the  attesting  witnesses,  if  found,  is  satis- 
fied by  proof  of  hand-writing,  if  they  are  out  of  the  State,  lunatic, 
or  the  like — 2  N.  Carolina,  311 — And  if  three  live  out  of  the  State 
proof  of  the  hand-writing  of  two  is  sufficient.     Ihid. 

When  the  witness  proves  his  own  hand-writing,  but  does  not 
remember  the  circumstances  of  the  attestation,  the  rational  con- 
clusion is,  that  he  subscribed  it  in  the  presence  of  the  testator. — 
But  this  presumption  is  abundantly  fortified  by  his  recollection 
that  he  attested  some  instrument  at  the  request  of  the  testator, 
and  that  it  is  his  invariable  habit  not  to  attest  an  instrument,  as  a 
witness,  unless  it  be  acknowledged  by  the  person  who  purports 
to  have  executed  it~-2  Littel,  137;  4  Bibb,  21;  2  Strange,  1109;  5 
John.  144;  1  Littel,  101;  3 J. J. Marsh.  116;  lM'Cord,272. 

Where  one  witness  testifies  that  the  will  was  executed  as  the 
statute  requires,  but  does  not  recollect  that  the  other  witnesses  sub- 
scribed their  names  in  the  presence  of  the  testator,  but  does  re- 
collect that  they  were  part  of  the  company  present,  and  recogni- 
zes their  hand-writing,  and  other  witnesses  also  prove  their  hand- 
writing, the  Court  may  well  be  satisfied  that  the  witnesses  did 
thtn  attest  the  will,  in  the  testator's  presence,  and  there  is  no 
compulsion  to  take  a  dedimus  for  the  deposition  of  the  other  wit- 
nesses— 1  Littel,  103, 104.  But,  where  one  witness  states  that  he 
wrote  the  will  by  the  direction  of  the  testatrix,  and  signed  his 
name  in  her  presence,  and  that  the  other  witnesses  signed  their 
names  also  in  the  same  room  with  the  testator,  although  the  se- 
cond witness  could  not  recollect  whether  she  signed  it  in  the 


204  PROBATE  OF  WILLS.  [CH.  XXVIII. 

same  room  or  another ;  and  the  third  witness  says  he  signed  it 
in  another  room  where  the  testatrix  could  not  see  him,  the  proof 
was  deemed  insufficient  to  establish  that  will.  5  Monroe,  199;  2 
Littel,  137. 

§  9.  If  one  subscribing  witness  prove  the  attestation  of  a  suffi- 
cient number  of  witnesses,  in  presence,  and  at  the  request,  of  the 
testator,  it  will  authorize  the  presumption  of  publication  and  sig- 
nature before  or  at  the  moment  of  attestation.  1  B.  Monroe's  R. 
116. 

And  one  witness  need  not  prove  that  testator  was  of  sound 
mind  and  memory,  where  the  will  is  proved  to  be  wholly  in  the 
hand-writing  of  the  testator — for  this  fact  is  evidence  of  his  ca- 
pacity.   4  Bibb,  244. 

Where  one  witness  only  is  admitted,  he  must  be  credible,  and 
his  testimony  direct  and  positive.  His  "impressions"  and  state- 
ments "according  to  his  recollection,"  are  not  sufficient — 1  Dana, 
163. 

An  attesting  witness  who,  since  the  attestation  has  become  in- 
terested, need  not  be  produced,  but  the  will  may  be  established 
by  other  witnesses.    4  Dev.  N.  Car.  R.  502. 

§  10.  Testamentary  witnesses  and  the  facts  they  state,  as  occur- 
ring at  the  execution  of  the  will,  are  particularly  to  be  regarded 
by  the  Court — 1  Green's  Ch.  R.  8.  But  the  statute  does  not  re- 
quire that  the  will  shall  be  proved  by  the  attesting  witness  only. 
It  may  be  proved  as  all  other  attestations  may,  subject  to  the  like 
rules  of  evidence.— -Powell  on  devises,  708,  710;  5  Monroe,  199; 
Blackf  R.  365;  Gibb.  R.  inEq.  364;  1  Con.  R.  So.  Car.  336;  1 
Green's  Ch.  R.  220 — Wills  have  been  established  even  in  oppo- 
sition to  the  denial  by  witnesses,  who  attested,  of  their  signatures. 
2Littel,137;  4Bibb.21. 

As  a  general  rule,  a  will  of  personal  estate  is  required  to  be 
proved  by  two  witnesses,  though  it  is  not  always  required  that 
they  should  be  subscribing  witnesses. — As  where  the  will  is  writ- 
ten by  the  testator  himself,  it  is  good  if  the  hand-writing  be  prov- 
ed by  two  witnesses,  or  if  the  execution  and  identity  of  the  will  is 
proved  by  one  witness  and  the  hand-writing  by  the  other— 5  Yerg. 
425.  In  Mississippi,  a  will  of  personalty  requires  only  one  wit- 
ness—See ante.  p.  43;  5  W.  425. 


CH.  XXVllI.]  PROBATE  OF  WILLS.  205 

.  §  11.  The  probate  of  a  will  in  common  form,  may  be  set  aside 
after  the  term  expires,  at  which  the  will  was  proved;  and  a  se- 
cond probate  be  ordered  by  the  same  Court.  The  Court  will  look 
at  all  the  circumstances  to  aid  its  discretion  in  ordering  a  second 
probate — 1  Murphy,  99 — and  it  may  be  at  the  instance  of  the  next 
of  kin.    4  Dev.  430. 

But  where  an  issue  of  dtmsavit  vel  non  had  been  made  up  be- 
tween some  of  the  next  of  kin  and  the  executor,  and  the  issue 
found  against  the  will,  a  devisee,  who  had  not  been  a  party  was 
not  permitted  to  come  in  afterwards  and  have  the  issue  re-tried. 
(But  see  6  Sm.  &  M.  as  to  infants,  and  4  Dev.  430,  as  to  parties.) 
Our  courts  of  Probate  are  courts  of  Record,  and  what  is  done  by 
them  is  conclusive — 2  Hayw.  164.  Therefore,  the  probate  of  a 
will  ought  regularly  to  appear  upon  the  minutes  of  the  County 
Court,  and  the  will  itself  ought  to  be  recorded.  2  Dev.  527;  1 
W.&S.398. 

Where  a  will  of  land  appears  to  have  been  attested  by  two  wit- 
nesses, and  the  certificate  of  probate  states  it  was  proved  by  one, 
it  will  be  intended  prima  facie,  it  was  legally  proved  by  him. — 
No.Car.T.R.  13. 

A  grant  of  administration  is  presumptive  evidence  of  the  pro- 
bate of  a  will.     1  W.&S.396. 

§  12.  The  next  of  kin  has  the  right  to  have  the  probate  of  a  will, 
taken  in  common  form  recalled,  and  the  will  proved  per  testes, 
unless  after  notice  of  the  probate  he  has  been  guilty  of  gross 
laches,  or  long  acquiesced  in  it — and  this  without  making  affida- 
vit of  recently  discovered  testimony,  to  impeach  the  will— -4  Dev. 
430,  &  1  Dev.  &  Bat.  482.  And  the  receipt  of  a  legacy  under  the 
will,  or  a  claim,  by  bill  in  equity,  of  a  trust  in  the  whole  estate 
under  the  will,  is  not  an  acquiescence  which  will  bar  this  right. 
lDev.&Batt.482. 

Probate  of  will  in  common  form  implies  that  the  next  of  kin 
are  not  privy  to  it ;  but  this  presumption  may  be  rebutted  by  lapse 
of  time,  or  notice  of  a  contest  between  the  executor  and  another 
of  the  next  of  kin.    4  Dev.  430. 

§  13.  But  courts  of  Probate  act  on  different  principles  in  ap- 
plications to  revoke  letters  of  administration,  and  to  re-propound 
a  will  which  was  onq^'TeJected.    The  latter  is  never  done  at  the 


206  PROBATE  OF  WILLS.  [CH.  XXVIII. 

instance  of  the  executor,  who  formerly  propounded  it,  except  in 
cases  of  fraud,  surprise  or  newly  discovered  testimony— -4  Dev.  430. 
Devisees  are  not  represented  by  the  executor,  and  are  not  affected 
by  a  sentence  against  the  will,  when  propounded  by  him,  unless 
they  are  parties  to  the  proceeding.     Ibid. 

But,  where  a  will  giving  the  executors  power  to  sell  land,  and 
directing  them  to  pay  the  interest  of  the  personalty  to  a  married 
woman  for  her  life,  and  after  her  death  to  divide  the  whole  and  the 
rents  of  the  land  between  her  children,  was  propounded  by  the 
executors,  and  on  the  caveat  of  her  husband  was  rejected,  the  sen- 
tence is  conclusive,  both  on  her  infant  children  then  in  being  and 
those  born  afterwards.    4  Dev.  430. 

For  whenever  the  depositary  of  a  power  is  bound  by  the  sen- 
tence of  a  Court  of  Probate,  the  person  interested  in  the  power, 
or  cestuy  que  trust,  is,  in  that  court,  also  bound — 4  Dev.  430 — 
And  where  a  power  over  the  land  is  created  by  the  will,  the  de- 
positary of  the  power  is  the  only  actor,  in  the  Court  of  Probate. 
Ibid. 

§  14.  Where  a  petition  is  filed  to  set  aside  the  probate  of  a 
will,  it  must  be  accompanied  with  an  affidavit — 2  Car.  L.  R.  414, 
634.  Nor  will  an  affidavit  before  a  magistrate  of  another  county 
be  sufficient.    2  Car.  L.  R.  634. 

In  a  petition  to  have  the  probate  of  a  will  set  aside,  and  a  re- 
probate in  solemn  form,  all  the  heirs  and  distributees  need  not 
be  made  parties.  It  is  sufficient,  if  the  petition  be  brought  by 
one  of  them,  and  all  the  executors,  devisees  and  legatees,  claiming 
under  the  will,  be  made  defendants.     1  Hawks,  58. 

Where  a  petition  for  re-propounding  a  will  for  probate,  does 
not  state,  between  whom  the  issue,  on  the  first  attempt  to  prove 
it,  was  joined,  nor  show  whether  the  proper  persons  were  parties 
to  that  issue,  nor  whether  the  executor  acted  bona  fide  or  other- 
wise, so  that  the  court  cannot  see  whether  the  petitioners  were 
or  were  not  bound  by  the  finding  on  that  issue — the  petition  will 
be  dismissed  without  costs,  and  without  prejudice  to  the  right  of 
the  petitioners  to  propound  the  same  again,  in  proper  form,  before 
a  competent  tribunal.     1  Dev.  &  Batt.  186. 

§  15.  An  application  to  set  aside  the  probate  of  a  will,  on  the 
ground  of  irregularity,  must  be  made  to  the  court  which  erred, 


CH.  XXVIII.]  PROBATE  OF  WILLS.  207 

or  to  one  of  controlling  power.  Therefore,  where  a  will  was  of- 
fered for  probate  on  the  ground  of  irregularity,  to  the  County 
Court,  an  appeal  taken  from  the  decision  to  the  Superior  Court, 
and  the  cause  thence  removed  to  the  Superior  Court  of  an  adjoin- 
ing county,  which  after  a  trial  by  jjiry,  ordered  the  will  to  be  there 
recorded  and  a  copy  to  be  sent  to  the  Circuit  Court,  where  the 
suit  originated,  to  be  recorded  there  also,  the  County  Court  cannot 
order  a  probate  dt  novo,  on  the  ground  of  irregularity.  2  Car.L. 
R.  613;  1  Dev.  459.    But  see  ante.  ch.  5,  sec.  9,  p.  24. 

§  16.  Upon  the  probate  of  a  will  in  the  Superior  court,  under 
an  issue  of  dtvisavit  vel  non,  the  clerk  of  the  Superk)r  court  should 
return  the  will  with  a  certificate  of  its  probate  to  the  county  court, 
and  the  county  court  should  direct  both  the  will  and  the  record 
from  the  Superior  court  to  be  recorded.  A  copy  of  the  will  and 
of  this  certificate  under  the  seal  of  the  county  court,  is  a  sufficient 
attestation  of  the  probate — 2  Dev.  393.  The  Circuit  (or  Superior) 
court,  can  only  certify  the  verdict  of  the  jury  to  the  court  of  Pro- 
bates, that  judgment  may  be  rendered  thereon  in  the  latter  court. 
And  an  application  for  a  new  trial  must  be  made  in  the  latter 
court,  after  certifying  such  verdict— -2  Paige, 487;  2  Rob.Prac.356, 
cited  6  Sm.  &  M.  If  refused  there  and  finally  disposed  of,  the 
whole  case  may  be  brought  up  to  the  court  of  Error — Ibid.  If 
the  circuit  court  render  a  judgment,  it  is  a  nullity — Ibid. — deci- 
ded January  tr.  1846.* 

A  copy  of  the  record  from  the  Superior  court  establishing  the 
will  and  a  copy  of  the  will,  both  authenticated  by  the  clerk  of 
the  county  court,  would  entitle  the  will  to  be  read — 2  Dev.  393. 
But  a  mere  certificate  of  the  will  being  so  proved  and  recorded, 
though  under  the  seal  of  the  county  court,  is  not  a  sufficient  at- 
testation of  the  probate — Ibid.  And  although  the  certificate  of 
the  clerk  on  the  will  itself,  has  commonly  been  received  as  suffi- 
cient, yet  if  this  certificate  be  made  and  signed  by  the  deputy,  it 
is  not  a  legal  probate,  and  the  fact  that  the  will  is  on  the  files  of 
the  court,  will  not  aid  it.    Ibid. 


•By  act  of  1821 — "In  all  such  trials  by  jury,  the  certificate  of  the  oath  of  the 
witnesses,  at  the  time  of  the  first  probate,  shall  be  admitted  as  evidence,  to  haTe 
•uch  weight  ms  the  jury  think  it  deserves.     How.  &.  H.  p.  389. 


208  PROBATE  OF  WILLS.  [CH.  XXVIIL 

§  17.  The  best  proof  of  a  will,  according  to  the  rules  of  the 
Common  law,  is  the  production  of  the  instrument,  if  that  can  be 
had,  and  an  exemplification  of  the  will  under  the  great  seal,  would 
not  in  the  English  courts  be  evidence  to  a  jury  in  ejectment ;  nor 
would  the  probate  of  the  will  in  the  Spiritual  court  be  evidence 
in  such  case,  even  where  the  will  is  lost.  If  the  will  is  lost,  the 
Register  book,  or  ledger  book,  or  an  examined  copy — or  if  there 
be  no  such  copy,  parol  evidence  may  be  received,  as  secondary 
evidence  of  its  contents,  but  the  probate  will  not  be  received  as 
such  evidence.     Roscoe  Ev.  72-3 — cited  in  3  Lomax,  50. 

There  seems  in  Virginia  to  be  the  same  ground  where  the  will 
has  been  exhibited  and  admitted  to  probate  merely  as  a  will  of 
personalty,  for  excluding  the  probate  of  the  will  as  evidence  to 
sustain  a  title  by  devise.  But  where  the  probate  of  the  will  is 
general  and  indefinite  in  its  terms,  so  that  it  is  not  confined  mere- 
ly to  the  personalty,  then  the  probate  will  be  evidence  before  a 
jury,  and  upon  showing  the  probate  of  the  will,  they  may  find 
that  the  same  was  duly  made  and  executed,  without  staking  the 
probate  as  the  evidence  upon  which  they  find  the  fact.  2  Rand. 
200— cited  3  Lomax,  50. 

Such  also,  it  is  presumed,  would  be  the  rule  in  Mississippi, 
under  our  statute  which  says — "all  original  wills,  after  probate 
thereof,  shall  be  recorded  and  remain  in  the  clerk's  office  wherein 
they  were  respectively  proved,  except  during  such  time  as  they 
may  be  in  the  court  of  Chancery,"  (now  Circuit  court,)  "  or  Su- 
preme court,  having  been  removed  thither  for  inspection,  &c. — 
after  which  they  shall  be  returned  into  the  said  office,  and  an  au- 
thenticated copy  of  any  will,  testament,  or  codicil,  recorded  in 
any  office  authorized  to  record  the  same,  shall  be  admitted  as  ev- 
idence in  any  court  of  law  or  equity  in  this  State.  Acts,  1821: 
How.  &  H.  387— See  also  3  How.  148. 

PROOF    OF    LOST    WILLS. 

§  18.  To  warrant  the  proof  of  a  lost  will,  not  shown  to  be  de- 
stroyed by  parol,  it  must  be  shown  that  diligent  search  was  made 
for  it,  at  the  place  where  it  was  most  likely  to  be  found — as,  where 
the  testator  usually  kept  his  most  valuable  papers.  Cow.  208; 
4Cowen,483;   11  Wend.  599. 


CH.  XXVIII.]  PROBATE  OF  WILLS.  209 

Proof  of  search  for,  or  loss  of  a  paper,  to  warrant  secondary  ev- 
idence of  its  contents,  may  be  made  by  the  oath  of  a  party  in  the 
cause,  though  he  be  interested.     Ihid. 

The  testimony  of  a  witness  proving  that,  on  search  made  in  a 
Surrogate's  office  for  a  will,  which  according  to  the  law  relating 
to  ancient  wills  ought  there  to  have  been  deposited,  such 
will  could  not  be  found,  is  equivalent  to  the  testimony  of  the  Sur- 
rogate himself,  although  the  witness  is  not  a  clerk  in  the  office. 
The  certificate  of  the  Surrogate  is  not  the  only  competent  evi- 
dence.— Ihid.    See  ante.  sec.  17. 

Where  a  witness  to  a  lost  will  proved  its  due  attestation  by 
three  witnesses,  but  had  forgotten  the  name  of  one  of  them,  hav- 
ing no  doubt  however  that  he  was  a  competent  witness,  this  was 
held  sufficient    4  Cowen,  483;  6  ib.  377. 

§  19.  "If  any  person  shall  be  a  subscribing  witness  to  a. will 
wherein  any  devise  or  bequest  is  made  to  such  subscribing  wit- 
ness, and  the  will  cannot  be  otherwise  proved,  the  devise  or  be- 
quest to  such  witness  shall  be  void;  and  he  or  she  compelled  to 
appear  and  give  testimony  on  the  residue  of  the  will  in  the  like 
manner  as  if  no  such  devise  or  bequest  had  been  made.  But  if 
such  witness  would  have  been  entitled  to  any  share  of  the  testa- 
tor's estate,  in  case  the  will  was  not  established,  then  so  much  of 
said  share  shall  be  saved  to  such  witness  as  shall  not  exceed  the 
value  of  the  said  devise  or  bequest  made  to  him  or  her  in  the 
said  will.    Acts,  1821— How.  &  H.  p.  388.* 

All  those  who  are  capable  of  being  witnesses  to  any  other  mat- 
ter, are  capable  of  being  witnesses  to  a  will — 3  Lomax,  43 — And 
till  the  foregoing  statute,  neither  a  legatee  or  devisee  was  a  com- 
petent witness,  to  the  will  containing  the  legacy  or  devise  in  his 
favor.  As  to  admissibility  of  witnesses  to  will  in  England  before 
the  statute  of  Geo.  2d,  see  the  two  celebrated  cases  of  Wyndham 
vs.  Chetwynd,  4  Kent's  Com.  509;  and  Doe  ex  dem.  Hindson  vs. 
Kersey,  1  Burr.  R.  414;  2  Str.  R.  1253— also  1  Day's  Conn.  R.  41; 


*A  person  who  signs  a  will,  as  a  subscribing  witness,  against  the  consent  of 
the  testator,  and  after  he  has  been  told  by  the  testator,  that  he  shall  not  be  a  wit- 
ness to  it,  is  not  a  eood  subscribing  witness.  Tilley'a  will— Chancellor  Williara- 
Mn,  N.Jersey,  July  tr.  1827. 

27 


210  )»ROBATE  OP  WILLS.  [CH.  XXVIII. 

9 Pick.  350;  4Dess.274;  2 Bay. 448;  16 Mass. 433;  N.H.R.273; 
cited  in  3  Lomax,  44,  &  stq^. 

If  the  devise  or  legacy  be  to  the  husband  or  wife  of  the  wit- 
ness, such  devise  Avill  be  equally  void  as  if  made  to  the  witness, 
and  the  party  becomes  a  competent  witness.  1  John.  cas.  163;  2 
John.  cas.  314. 

A  legatee  may  be  a  good  witness  against  a  will,  because  he 
swears  against  his  own  interest.     Salk.  691. 

An  infamous  person  is  not  a  competent  witness  to  a  will — 4 
Burn's  Eccl.  L.  95,  cited  in  3  Lomax,  45 — though  he  has  become 
so  since  his  attestation  of  the  will — 5  Mass.  R.  219.  But  in  the 
latter  case,  the  will  is  not  invalidated.  Ihid.  See  ante,  page  100, 
tt  seq.  ch.  15. 

§  20.  On  a  question  as  to  the  validity  of  a  will,  a  witness  may 
be  asked  "whether  from  his  actual  knowledge  of  A.  B.  (the  alleg- 
ed testator,)  he  considered  him  fit  or  unfit  to  make  a  will" — 1 1 S. 
&  R.  141 — "what  opinion  he  formed  of  the  sanity  of  the  testator 
at  or  about  the  time  of  the  will  being  made" — but  not  "  what  he 
said  to  third  persons  on  the  subject."  3  W.  C.  C.  R.  580;  3  P.  C. 
C.R.580. 

The  opinion  of  witnesses,  founded  on  facts  known  to  them  and 
conduct  within  their  own  observation,  may  be  asked,  but  not  their 
opinions  on  an  assumed  state  of  facts,  or  on  facts  sworn  to  by  other 
witnesses,  as  to  the  capacity  of  the  testator — 7  S.  &  R.  90.  On  an 
issue  devisavit  vel  non,  all  the  witnesses,  if  to  be  had,  are  to  be 
examined  at  law — Coop.  138;  3  Lomax,  52.  See  also  ante.  ch.  15, 
pages  100,  et  stq. 

§  21.  Upon  an  issue  of  devisavit  vel  non,  it  is  not  absolutely  ne- 
cessary, as  a  rule  of  law,  to  prove,  besides  the  capacity  of  the  tes- 
tator and  the  formal  execution  of  the  will,  the  further  fact,  by  dis- 
tinct evidence,  that  the  testator  knew  the  contents  of  the  instru- 
ment. For  the  jury  may  infer  such  knowledge  from  the  evidence 
of  capacity  and  execution — 1  Dev.  &  Batt.  276;  ib.  82.  Nor  is  a 
will,  written  for  a  testator  in  extremis,  by  one  standing  in  a  confi- 
dential relation  to  him,  and  who  takes  a  benefit  under  it,  invalid 
by  conclusion  of  law,  unless  read  over  to  the  testator,  or  its  con- 
tents otherwise  proved  to  have  been  known  to  him.    These  facta 


CH.  XXIX.]      FOREIGN  GRANT  OF  ADMINISTRATION.  211 

must  be  left  to  the  jury,  and  from  them  fraud  may  be  inferred, 
unless  repelled  by  proof  of  bona  fides. — Ibid.82;  2Dev.  291,  & 
3W.C.C.R.580. 

',  The  Judge  of  Probate  is  competent  to  decide  as  to  the  sanity 
of  the  testator,  and  it  seems  that  when  his  mind  is  satisfied,  it  will 
not  be  error  for  him  to  refuse  to  hear  further  circumstantial  evi- 
dence.   4  How.  459. 


CHAPTER  XXIX. 

»^  FOREIGN  GRANT  OF  ADMINISTRATION. 

Xi  §  1.  Having  adverted  to  the  rules  respecting  foreign  wills,  and 
the  mode  of  authenticating  them,  so  as  to  entitle  them  to  probate 
in  Courts  of  Probate  within  this  State,  and  also  considered  gen- 
erally the  manner  of  probating  wills  and  the  effect  thereof,  it  will 
not  be  out  of  place  here  to  consider  the  effect  of  a  grant  of  letters 
testamentary  or  of  administration  in  one  State,  upon  the  assets  of 
the  testator  or  intestate,  situated  in  another  State. 

§  2.  Every  grant  of  administration  is  strictly  confined  in  its  au- 
thority and  operation  to  the  limits  of  the  territory  of  the  govern- 
ment which  grants  it  and  does  not,  de  jure,  extend  to  other  coun- 
tries. It  cannot  confer,  as  a  matter  of  right,  any  authority  to  col- 
lect debts  of  the  decedent  in  any  Other  State.  And  whatever  op- 
eration is  allowed  to  it,  beyond  the  original  territory  of  the  grant, 
is  a  mere  matter  of  courtesy,  which  every  nation  is  at  liberty  to 
yield  or  withhold  according  to  its  own  policy  and  pleasure,  with 
reference  to  its  own  institutions  and  the  interest  of  its  own  cit- 
zens. 


212  FOREIGN  GRANT  OF  ADMINISTRATION.      [CH.  XXK. 

The  administrator  is  exclusively  bound  to  account  for  all  the 
assets,  which  he  receives  under  and  by  virtue  of  his  administra- 
tion, to  the  tribunal  from  which  he  derives  his  authority.  The 
tribunals  of  other  States  have  no  right  to  interfere  with  or  control 
the  application  of  those  assets  according  to  the  lex  loci.  Hence 
no  administrator  can  sue  in  his  official  capacity,  for  any  debts  due 
to  his  intestate,  in  the  courts  of  another  State,  and  is  not  liable  to 
be  sued  in  that  capacity,  in  the  courts  of  the  latter  by  any  credit- 
or, for  any  due  there  by  his  intestate. — Vaughn  et  al.  vs.  Northup; 
15  Peters,  1,  6,  citing  1  Cranch,  259;  3  Cranch,  319;  9  Wheat.  ^ 
565;  7  Cowen,  64— See  also  2  Metcalf,  114,  116;  3  Mass.  514;  1 ' 
Pick.  81,  86;  11  Wend.  372;  9  ib.  425;  3  Day,  C.  C.  R.  303. 

But  if  he  collect  abroad,  he  may  be  charged  with  them  here 
as  executor  de  son  tort. — Ibid.  7  John.  Ch,  R.  45,  47 — (2  Simon 
&  Stu.  384,  contra)  Story's  Confl.  of  laws,  425,  431.*  See  7 
Cowen,  64. 

The  administration  of  personal  estate  is  governed  by  the  lex  loci 
— but  of  the  real  estate  by  the  lex  rei  sit(Z. — 3  Mete.  109, 114;  10 
Pick.  77, 108;  9  Cranch.  151;  Ib.418;  Story's  Confl.  of  laws,  418, 
421. 

A  foreign  administrator  cannot  assign  a  mortgage  of  lands  in 
this  State — (Masstts.) — 1  Pick.  81,  86 — nor  can  land  in  Ohio  be 
sold  by  an  administrator  in  Connecticut  under  an  order  of  the 
Orphan's  court  there,  though  the  proprietor  lived  and  died  in 
Connt. — I  Ohio,  572 — nor  can  a  power  given  by  will  in  Virgin- 
ia to  an  executor,  to  sell  lands  in  Ohio,  who  refuses  to  qualify  or 
act,  be  executed  by  an  administrator  with  the  will  annexed,  tho* 
the  statute  in  Virginia  gives  such  administrator,  in  such  case, 
power  to  sell  land.— 2  Ohio  R.  126;  3  Ohio,  486.  But  he  may 
assign  a  negotiable  note  or  bill,  in  another  State.  2  Peters,  S.  C. 
R.239. 


•The  act  of  Congrees  of  June.  1822,  authorisea  any  person  to  whom  letters  tes- 
tamentary or  of  administration  have  been  granted  in  the  States  of  the  United 
States,  to  prosecute  claims  by  suit  in  the  District  of  Columbia.  This  does  not 
authorize  suits  against  executors  and  administrators.  The  effect  of  the  law  was 
to  convert  local,  into  general  assets,  to  be  accounted  for  by  the  executor  or  admin- 
istrator in  the  Courts  granting  administration.  15  Peters,  1,  6 — citing  authorities 
•8  above. 


CH.  XXIX.]       FOREIGN  GRANT  OP  ADMINISTRATION.  213 

Debts  due  from  the  United  States  are  general  and  not  local  as- 
sets.    15  Peters,  1. 

§  3.  An  administrator  can  maintain  an  action  for  debts  in  one 
State,  in  his  individual  capacity  upon  a  judgment  recovered  by 
him  as  administrator  in  another  State,  for  on  that  he  need  not  sue 
as  administrator. — 16  Mass.  71.  He  may  also  maintain  a  suit 
here,  though  appointed  abroad,  on  a  note  payable  to  his  intestate 
or  htartr.    9  Wend.  423,  425. 

As  to  the  general  power  of  administrator  or  executor,  within 
the  State  of  Ohio — see  2  Ohio  R.  126  to  133 — and  ante.  sec.  2. 

A  judgment  against  an  administrator  in  one  State  is  not 
binding  in  another  State — 2  Rawle's  R.  431 — unless  the  same 
person  be  administrator  in  both. — Story's  Conf.  of  laws,  436. — 
For  there  is  no  privity  between  them. — 2  Hill's  So.  Car.  R.  614. 
So  judgment  obtained  by  administrator  in  one  State  is  not  a 
ground  of  action  by  the  administrator  in  another  State.  Story's 
Conf.  437. 

§  4.  An  executor  or  administrator  cannot  withdraw  assets  from 
another  State,  without  paying  debts  there.  It  would  be  a  hardship 
to  permit  this  and  thereby  drive  creditors  for  their  remedy  to  the 
domicil  of  the  deceased.  Palmer's  R.  163;  3  P.  Wms.  369;  2  Ves. 
35;  I  Price's  R.  179;  2  Madd.  R.  101;  I  Hag.  Eccl.  R.  93,  239; 
Metf.  pi.  177;  I  Cranch.  259;  3  ib.  319,  323;  9  Wheat.  565;  12 
ib.  169;  2  N.Hamp.  291;  4  Rand.  158;  2  Gill.  &  John.  493;  5 
Greenl.R.261;  3  Mass.  514;  5  Mass.  67;  11  ib.  256, 313;  20  Mar- 
tin's La.  R.  232; -3  Day,  74,  303;  4  Mason's  R.  M.  16,  32;  5  Pick. 
65;  20  John.  229,  255;  7  Cowen,  64;  2  Sim.  &  Stu.  284;  Peters 
R.  518— cited  in  1st  Kinnie's  L.  Comp.  392,  4. 

For  statuary  provisions  on  this  subject,  in  Mississippi, — see 
How.  &H.  406,  415. 

§  5.  Where  the  assets  of  the  decedent  are  in  transitu,  if  admin- 
istration is  granted  to  diiferent  persons  in  different  States,  the  one 
first  taking  possession  of  the  property  shall  administer.  If  to  the 
same  persons  in  different  States,  he  must  settle  in  one  State  by 
showing  what  has  been  inventoried  by  him  in  the  other.  3  Paige, 
459.  Immediately  on  the  return  of  transient  goods,  such  as  ships, 
and  cargoes,  &c.  to  the  domicil  of  the  owner,  whether  by  remit- 
tance or  otherwise,  it  is  understood  to  be  under  the  control  of  the 


214  FOREIGN  GRANT  OF  ADMINISTRATION.       [CH.  XXIX. 

administrator  there. — Story's  Confl.  434-5.  In  a  case,  where  the 
personal  estate  consisted  of  stage  coaches  and  horses,  forming  a 
daily  line,  in  two  States — the  Chancellor  of  New-York  decided, 
that  if  administration  had  been  granted  to  different  individuals 
in  the  two  States,  the  one  first  getting  possession  within  his  own 
State  should  administer — but  where  one  person  administers  in 
both  States,  it  would  be  necessary  to  ascertain  what  had  been  in- 
ventoried and  accounted  for  hy  him  in  each  State  respectively. — 
3  Paige,  459;  Story's  Conf.  435-6. 

§  6.  An  executor  or  administrator  in  one  State  is  bound  to  take 
measures  for  the  collection  of  debts  due  his  decedent's  estate  from 
a  debtor  residing  in  an  adjoining  state,  either  by  obtaining  himself, 
or  employing  an  agent  to  obtain,  letters  of  administration,  and 
institute  proceedings  there  in  virtue  thereof — 11  Wend.  361 — 
and  more  than  ordinary  diligence  will  be  exacted  of  him  in  the 
performance  of  this  trust.     Ibid. 

It  is  not  necessary  as  a  prerequisite  to  ancillary  administra- 
tion, that  original  administration,  in  the  jurisdiction  where  the 
deceased  dwelt,  should  have  been  previously  granted.     1 1  Mass. 

256.  'in 'I    t'  ';i„'    iol  J'.uJt? ''•>(■;  '«;;rl,: 

Any  other  administration  than  that  granted  where  the  deceased 
had  his  domicil,  is  ancillary  merely.  3  Metcalf,  109,  114;  11 
Mass.  256;  9  ib.  337. 

Where  an  original  administrator  or  another  person  takes  out 
new  administration  in  a  foreign  country,  to  administer  assets 
there  situated,  still  the  new  administrator  is  subservient  to  the 
rights  of  creditors,  legatees,  &c.  in  this  State,  and  the  re- 
siduum is  transmissible  to  the  foreign  State  only  when  the  final 
account  has  been  settled  in  the  domestic  tribunal,  according  to  its 
laws.  Story's  Conf.  422;  I  Mason's  Rep.  381;  3Rawle,312— 
(See  also  ante.  sec.  4) — see  3  Rawle,  319. 

And  if  one  has  taken  out  letters  of  administration  in  another 
State  as  well  as  in  this,  and  the  other  State  were  the  domicil  of 
the  testator  or  intestate,  the  administrator  is  not  accountable  at 
law,  in  this  State,  for  assets  received  by  virtue  of  his  administra- 
tion in  the  other  State.  If  the  intestate's  domicil  were  in  this 
State,  the  liability  of  the  administrator  in  our  courts  would  depend 
on  the  enquiry,  whether,  his  taking  possession  of  the  surplus  assets 


OH.  XXX.]  ADMINISTRATION.  216 

In'the  other  State,  as  administrator  of  the  domicll,  would  be  re- 
garded by  the  laws  of  that  State  as  a  discharge  of  his  administra- 
tion there.  And  these  matters  may  be  investigated  under  a  plea 
of  plene  administravil.  2  Bailey's  So.  Car.  R.  435 — See  3  P.  R. 
185. 

§  7.  Under  an  ancillary  administration,  the  administrator  can 
collect  and  pay  debts,  and  is  liable  for  the  contracts  and  duties  of 
the  testator  or  intestate — which  may  be  recovered  or  enforced 
within  his  jurisdiction,  but  is  not  liable  in  the  court  of  Probate  on 
any  partial  account  to  be  there  rendered  and  adjusted,  to  a  decree, 
'hither  of  payment  or  distribution,  whether  for  a  legacy  or  to  any  per- 
son claiming  a  share  by  succession.    9  Mass.  337;  10  Pick.  77.* 


CHAPTER  XXX.  '  ^^" 

AEMINISTRATION.  . 

§  1.  In  England,  the  right  of  Administration  belonged  firsU 
,to  the  testamentary  executor,  who  was  appointecj  by  the  testator, 
to  execute  his  will — secondly,  to  the  dative  executor,  who  was 
called  administrator  with  the  will  annexed, — and  who  was  ap- 
pointed by  the  Ordinary  or  Bishop  of  each  diocese,  when  the  ex- 
,ecutor  named  in  the  will,  either  would  not  or  could  not  act  as 
such.     An  administrator  thus  appointed,  was  chargeable  to  the 
Ordinary  in  the  same  manner,  as  if  he  had  been  appointed  by 
..the  testator.     Thirdly — the  legal  Executor,  being  the  Ordinary 


•Where  letters  of  administration  are  granted,  and  the  will  having  been  made 
in  a  ioreign  country,  remains  as  a  record  in  some  public  office  there,  the  proper 
course  is  to  annex  an  authenticated  copy  of  the  will  to  the  letters  of  administra- 
tion. 1  Paige,  1 3— (See  How.  &  H.  p.  388,  387)— and  see  1  Sm.  &  M.  Ch.  R.  495— 
which  decides  that  a  certitied  copy  of  the  will  from  the  Probate  Court  of  this  State 
will  be  admiuible  as  evidence. 


216  ADMINISTRATION.  [CH.  XXX. 

himself,  when  no  executor  was  appointed  by  the  testator  in  his 
will.    Swinb.  part  6,  sec.  1. 

These  various  classes  with  their  respective  powers,  duties  and 
liabilities,  will  be  separately  considered  in  the  following  pages. 

It  must  be  borne  in  mind  that  the  administration  of  personal 
estate  of  eVery  description,  of  every  person  after  his  death,  be- 
longs to  his  executor  or  administrator.  Lands,  tenements,  and 
hereditements,  descend  to  the  heir — Swinb.  part  6,  sec.  3,  (4) — 
and  the  executor  or  administrator  shall  not  meddle  with  them. — lb. 

The  appointment  of  an  executor  or  administrator  is  indispensa- 
ble, £is  not  even  next  of  kin  can  manage  the  estate  without  taking 
out  letters.    1  M'Cord's  Ch.  R.  324. 

WHO  MAY  BE  EXECUTOR. 

§  2.  Every  person  may  be  an  executor  except  such  as  are  for- 
bidden.   Swinb.  part  5,  sec.  1,  c;  Comyn's  Dig.  T.  Ex'r.  B.  2. 

At  Common  law,  a  villein  might  be  appointed  by  his  lord  his 
executor :  and  in  such  case,  the  appointment  manumitted  him. 
Swinb.  part  5,  g. — Itdd.  So,  an  infant,  or  one  en  ventre  sa  mere. 
Com.  Dig.  Exec.  B.  2 — Swinb.  part  5,  g. — And  the  acts  of  an  in- 
fant were  valid,  if  strictly  within  the  compass  of  his  office,  and 
not  to  his  own  prejudice. 

But  if  the  infant  were  so  young  as  to  want  discretion,  then  the 
ordinary  committed  the  execution  of  the  will  to  the  child's  tutor, 
until  he  reached  the  age  of  17  years. — Ibid. 

In  Mississippi,  a  child  is  qualified  to  act  as  executor  at  the  age 
of  18  years — How.  &H.  sec.  23,  p.  391 — and  an  executorial  bond 
executed  by  such,  shall  be  as  binding  as  if  he  were  of  full  age. 
Ibid. 

So,  at  common  law,  a  feme  coverte  might  be  executrix. — Com. 
Dig.  Exec'r.  B.  2 — Swinb.  part  5,  sec.  1, 1.  But  when  a  woman 
was  made  a  sole  executrix  and  married,  the  release  by  the  hus- 
band of  a  debt  due  to  the  deceased  was  good. — Ibid. — And  a 
feme  coverte  cannot  act  without  the  consent  and  concurrence  of 
her  husband.    Toller,  30. 

In  Mississippi,  "no  married  woman  shall  be  entitled  to  letters 
testamentary  unless  her  husband  shall  give  bond  with  sufficient 
security,  for  faithful  performance,  as  in  other  cases."  How.  &  H. 
sec.  23,  p.  391.  ^ 


CH.  XXX.]  ADMINISTRATION.       .  217 

So,  at  common  law,  an  alien  might  be  an  executor. — Com.  dig. 
Exec'r.  B.  2 — if  an  alien  friend — Toller,  31. 

An  alien  enemy  may  (in  North- Carolina,)  qualify  as  executor, 
if  resident  within  the  State,  by  permission  of  the  proper  authori- 
ties, but  not  otherwise.    2  Murphy,  268. 

So,  at  common  law,  a  convict  or  attainted  person,  might  be  ex- 
ecutor— Com.  dig.  Adm'r.  B.  2 — So,  a  monk,  or  friar,  though  civ- 
illy dead. — Ibid. 

So,  if  an  executor  become  a  bankrupt,  his  authority  shall  not 
be  revoked. — Com.  dig.  Exec'r.  B.  2.  Poverty  and  insolvency  are 
no  disqualification  of  one  in  whom  the  testator  has  reposed  so 
much  confidence.— 5  Serg.  &  R.40;  3  Dess.  93, 94;  I  Cranch.259; 
3  ib.  315.  Want  of  capacity  is  no  ground  of  removal,  if  it  equally 
existed  at  the  time  of  the  appointment.    2  How.  905. 

A  corporation  aggregate  cannot  be  executor,  because  it  cannot 
take  an  oath  to  make  probate  of  the  will. — Com.  dig.  Exec'r.  B.  2. 
But  see  Toller,  30 — where  is  laid  down  the  modern  rule,  that 
such  a  corporation  may  be  executor,  and  appoint  syndics,  as  a- 
gents  to  act  for  them. 

The  king,  at  common  law,  could  be  executor,  but  appointed 
commissioners  to  act  for  him.     Com.  dig.  Ex'r.  B.  2. 

At  common  law,  the  following  persons  were  incapable  of  being 
executors: — A  heretic ;  an  apostate ;  an  ana-baptist ;  traitors  and 
felons;  an  outlaw;  an  excommunicate;  a  bastard;  an  unlawful 
college; — and  to  this  list  the  civil  law  added  the  libeller. — Swinb. 
part  5,  sects.  2  to  10. 

By  act  of  Mississippi,  "  Persons  under  eighteen  years  of  age, 
when  letters  ought  to  be  granted — or  of  unsound  mind — or  inca- 
pable, according  to  law,  of  making  a  contract — or  convicted  of  any 
crime  making  him  or  her  infamous  according  to  law — are  dis- 
qualified from  being  executors. — How.  &  H.  sec.  22,  p.  391. — 
And  in  all  touching  such  disqualification,  the  courts  shall  re- 
ceive the  like  testimony  as  in  courts  of  law  and  equity,  in  like 
cases.    Ibid. 

EXECUTOR HOW  APPOINTED. 

§  3.  An  Executor  may  be  appointed  by  a  will — written  or  nun- 
cupative.   Toller,  33;  3  Bac.  abr.  27. 
28 


218  ADMINISTRATION.  ,      [cH.  XXX. 

-Any  words  that  denote  the  intent  of  the  testator,  that  such  an 
one  shall  have  the  care  of  his  personal  estate,  are  sufficient  to 
constitute  him  his  executor. — Com.  dig.  Ex'r.  B.  1;  7  Watts,  51. 
It  need  not  be  express,  but  may  be  constructive  only,  by  mere  je- 
commendation. — Toller,  35;  2  Black.  503 — For  numerous  exam- 
ples, see  Com.  dig.  Ex'r.  B.  1. 

But  if  B.  be  made  overseer,  or  coadjutor  to  the  executor,  B.  will 
not  thereby  be  constituted  executor.     Ibid.  v.  A—. 

The  appointment  of  an  executor  may  be  absolute  or  qualified. 
Toller,  35,  n.  [z] 

A  testator  may  make  more  than  one  person  his  executors.  If 
he  appoints  more  than  one,  their  authority  will  be  joint,  and  all 
are  considered  as  one  person.  Toller,  35,  n.  a. — Com.  dig.  Ex'r. 
B.l. 

A  testator  may  appoint  an  executor  for  goods  in  one  country, 
and  another  for  goods  in  a  different  country — Com.  dig.  Ex'r.  B.  1 
— or,  one  for  one  part  of  his  goods,  and  another  for  the  other  part. 
Ibid.  Or,  one  for  such  a  time,  and  afterwards  another. — Ibid. — 
Or,  such  an  one  to  be  his  executor,  on  a  contingency  or  condition, 
or,  that  upon  such  a  condition  being  performed,  A.  shall  be  his 
executor,  otherwise,  B. — Ibid.  (In  Tennessee,  an  administrator 
for  certain  assets,  and  for  a  specific  purpose,  may  be  appointed — 
6  Yerg.  302.)  And  if  the  condition  is  subsequent,  A.  shall  be  ex- 
ecutor till  a  breach — Ibid.  And  where  the  condition  is  repug- 
nant, as  that  one  of  the  two  executors  named  shall  not  adminis- 
ter, it  will  be  void  and  both  may  act.     Ibid. 

Each  has  a  right  to  receive  debts  due  to  the  estate,  and  all  oth- 
er assets,  and  is  answerable  for  what  he  receives.  This  responsi- 
bility results  from  the  right  to  receive,  and  the  nature  of  the  trust. 
A  payment  to  his  co-executor  will  not  discharge  him.  He  is 
bound  to  appropriate  all  he  receives  to  the  purposes  of  the  will. 
14  Peters,  166 — Executors  are  not  liable  to  each  other, — lb. 

EXECUTOR HIS   REFUSAL. 

§  4.  An  executor  named  in  a  will,  is  not  compelled  to  act.— ^ 
Toller,  40.     Verbal  refusal  is  not  sufficient. — lb. 

He  may  refuse  before  the  ordinary,  and  his  refusal  shall  be  re- 
corded— I  Com.  dig.  B.  4;  Tit.  adm'r.    And  if  he  send  a  letter  to 


CH.  XXX.]  ADMINISTRATION.  219 

the  ordinary,  by  which  he  renounces,  and  the  refusal  be  recorded, 
it  is  sufficient-— 16  S.  &  R.  416,  So,  if  a  creditor  of  the  deceased, 
who  has  been  named  executor,  sues  the  ordinary  for  the  debt,  it 
is  a  refusal.     So,  if  he  plead  that  he  was  never  executor. — lb. 

His  refusal  may  be  implied;  as,  if  being  summoned,  he  refuse 
to  take  the  requisite  oath; — this  shall  be  deemed  equivalent  to 
a  refusal.     Toller,  40. 

In  North-Carolina,  it  has  been  held,  that  a  formal  renunciation 
in  open  court,  is  not  necessary.    2  Murphy's  N.  C.  R.  84. 

If  an  executor  renounce  in  person,  he  must  take  an  oath  that 
he  has  not  intermeddled  and  will  not  intermeddle  with  the  goods 
of  the  deceased,  with  any  view  of  defrauding  creditors.  But  if 
he  renounce  by  proxy,  as  he  may,  then  the  oath  is  dispensed  with. 
Toller,  40. 

In  Mississippi,  "  If  any  executor  named  in  a  will,  being  requir- 
ed to  give  security,  shall  refuse  or  neglect  to  give  the  same,  such 
refusal  or  neglect  shall  amount  to  a  refusal  of  the  executorship. 
So,  if  they  shall  neglect  or  refuse  for  the  space  of  forty  days  after 
the  death  of  the  testator  or  testatrix,  to  exhibit  such  will  or  testa- 
ment for  probate,  it  will  be  deemed  a  renunciation,  and  adminis- 
tration shall  be  granted  with  the  will  annexed — provided  each 
executor  named  shall  have  been  previously  summoned  to  show 
cause  why  administration  should  not  be  granted; — and  if  absent, 
they  shall  have  sixty  days  after  their  return  to  appear  and  qualify. 
How.  &  H.  ch.  36,  sec.18— See  1  Humph.  R.  46. 

In  North-Carolina,  if  after  a  lapse  of  ten  years  from  the  testa- 
tor's death,  an  executor  named  in  a  will  has  not  qualified,  a  re- 
nunciation will  be  presumed — 2  Murphy,  84,  And  such  refusal 
may  be  presumed  not  only  from  lapse  of  time,  but  from  other  cir- 
cumstances.   2  Dana,  79. 

An  executor  cannot  refuse  in  part — he  must  refuse  entirely,  or 
not  at  all.    Toller,  40. 

If  there  be  more  than  one  executor,  all  must  renounce  before  ad- 
ministration can  be  granted.     Toll.  44. 

§  5.  After  administration,  an  executor  cannot  refuse.  1  Com. 
Dig.B.4;  Toll.  41;  5  John.  Ch.  388. 

-:■  The  acts  which  amount  to  an  administration  are  such  as  would 
(institute  an  executor  de  son  tort — or  indicate  an  election  of  the 


220  ADMINISTRATION.  [cH.  XXX. 

executorship — Toll.  43 — as  if  he  take  personal  property  and  pay 
debts.    5John.Ch.R.388. 

Much  less  can  an  executor  refuse  after  having  taken  an  oath 
before  a  Surrogate,  though  a  caveat  be  entered.  1  Com.  dig.  B.4; 
Swinb.  part  6,  sec.  2,  (7.) 

In  North-Carolina,  the  court  of  Probates  may  accept  the  re- 
nunciation of  an  executor,  at  any  time  before  he  has  intermed- 
dled with  the  testator's  goods,  even  after  he  has  proved  the  will. 
So  can  the  executor  of  an  executor,  as  to  the  first  will. — I  Iredell, 
298.  And  where  A.  died,  leaving  a  will,  appointing  B.  his  ex- 
ecutor, who  accepted — and  after  proving  the  will,  also  died,  leav- 
ing a  will  appointing  C.  and  D.  his  executors,  who  accepted  un- 
der the  latter  will,  without  at  the  same  time  renouncing  as  to  the 
former,  but  never  intermeddled  with  the  effects  of  the  first  testa- 
tor— held,  that  the  court  of  Probates  had  power,  years  afterwards, 
to  accept  their  renunciation  and  grant  administration  with  the 
will  annexed— of  the  first  testator's  estate.     I  Iredell,  298. 

The  rule  in  England  is,  if  an  executor  of  the  first  executor  in- 
termeddled with  the  goods  of  the  first  testator,  he  cannot  refuse 
to  qualify  as  executor  of  the  latter,  but  he  may  assume  the  last, 
and  refuse  the  former.— Toll.  45.  The  same  rule  appears  to  pre- 
vail in  some  of  the  States.— See  I  Nott  &  M'Cord,  326;  2  Hill's 
R.  221. 

But  in  Mississippi,  it  is  directed  that,  "  in  no  case  shall  the  ex- 
ecutor of  an  executor  be  entitled,  as  executor,  to  the  administra- 
tion de  bonis  non,  of  the  first  deceased."     How.  &  H.  397. 

And  if  administration  be  granted  after  the  executor  has  admin- 
istered, whether  before  or  after  oath,  the  grant  is  void — Swinb.  part 
6,  sec.  2,  [7]— Com.  dig.  Tit.  adm'r.  B.  1.  8. 

§  6.  If  an  executor  refuses,  he  cannot  afterwards  prove  the  will, 
if  administration  has,  in  the  mean  time,  been  granted.  I  Com. 
dig.  B.  4.  But  after  the  administrator's  death,  he  may  assume  the 
executorship — Toll.  41 — and  in  such  case,  he  may  retract  his  re- 
nunciation, however  formally  made.     Ibid. 

But  if  there  be  several  executors,  and  one  renounces,  and  the 
others  prove  the  will,  the  renunciation  is  not  peremptory,  and 
such  as  refuse  may  at  any  subsequent  period,  either  during  the 
lives  or  after  the  death  of  their  co-executors,  come  in  and  qualify, 


CH.  X2fX.]  ADMINISTRATION.  321 

and  shall  be  preferred  to  any  executor  named  by  them.  Toll.  44; 
I  Ash.  321.* 

In  Mississippi,  "  If  there  be  more  than  one  executor,  adminis- 
trator or  collector,  named  in  the  letters,  any  one  or  more  of 
them  on  the  neglect  of  the  rest,  may  return  the  inventory,  and 
those  neglecting  shall  not  afterwards  intermeddle,  unless  within 
two  months  they  assign  a  satisfactory  excuse  to  the  court.  How. 
&H.  sec.  65,  p.  403. 

§  7.  If  an  executor  does  not  refuse,  but  merely  fails  to  appear, 
when  served  with  a  citation  to  prove  the  will,  he  may  afterwards 
appear  and  prove  the  will,  though  intermediate  administration 
has  been  granted.    I  Com.  dig.  B.  4. 

§  8.  Though  an  executor  may  refuse,  he  cannot  assign — 3  Bac. 
abr.  42. 

But  an  executor  having  once  qualified,  cannot  divest  himself  of 
the  office — The  court  will  not  discharge  him. — I  Hill's  Ch.  (So. 
Car.)  R.  61— see  Toll.  40. 

After  probate  of  will,  (in  No.  Carolina,)  executor  can  only  re- 
nounce with  permission  of  court — I  Iredell,  298. 

In  Mississippi,  it  is  provided,  that  "on  application  of  any  per- 
son, to  whom  letters  testamentary  or  of  administration  may  have 
been  granted,  it  shall  be  lawful  for  the  probate  court  of  the  prop- 
er county  to  permit  such  person  or  persons  to  surrender  his,  her 
or  their  executorship,  or  administration,  by  giving  sixty  days  no- 
tice by  advertisement  at  the  door  of  the  court-house,  and  by  pub- 
lishing the  same  in  some  newspaper  of  this  State,  for  such  time 
as  the  court  may  consider  necessary,  and  settling  with  the  court 
so  far  as  his,  her,  or  their  administration  may  have  extended. — 
And  the  said  court  shall  make  such  allowance  to  such  person  or 
persons  as  they  may  deem  right  and  proper,  according  to  the  stat- 


•A.  one  of  three  executors,  and  indebted  to  the  testator  at  the  time  of  making 
his  will,  by  simple  contract,  refused  to  act,  and  the  other  two  executors  proved 
the  will  and  administered.  A.  afterwards  gave  a  bond  to  the  two  acting  execu- 
tors for  the  debt  from  him  to  the  estate — and  more  than  a  year  afterwards  took 
on  himself  the  office  of  executor,  and  cancelled  the  bond — Held,  the  bond  waa 
given  to  the  two  executors  for  a  valuable  consideration,  as  private  individuals, 
the  addition  of  executors,  &c.  being  merely  words  of  description,  and  that  A. 
could  not  avail  himself  of  the  privilege  of  executor  as  to  the  debt,  and  that  the 
other  executors  might  recover  of  him  the  amount  of  the  destroyed  bond.  19 
John.  R.  188. 


222  ADMINISTRATION.  [OH.  XXX, 

ute  in  such  cases  made  and  provided — unless  it  should  appear 
to  the  court  that  injury  would  result  to  those  interested  in  said 
estate — and  to  re-grant  letters  testamentary  or  of  administration 
to  such  person  or  persons  as  may  be'  entitled  to  the  same.  How. 
&  H.  547,  act  1822  * 

The  removal  of  an  executor  from  the  State  where  he  qualified, 
is  not  a  discharge  of  him  from  his  liabilities — 14  Peters,  166 — 
much  less  does  it  discharge  him  from  liability  for  assets  received 
by  him  and  paid  over  to  his  co-executor.     Ibid. 

EXECUTOR HIS  INTEREST  IN  TESTATOr's  GOODS. 

§  9.  An  executor  has  the  title  to  the  goods  of  his  testator  before 
actual  possession,  and  so  has  an  administrator — and  either  may 
maintain  trover,  trespass,  &c.     I  Com.  dig.  adm'r.  B.  10. 

And  though  the  executor  does  not  prove  the  will  for  a  long 
time,  after  the  testator's  death,  the  property  vests  in  him  imme- 
diately--9  Wend.  302;  2  Hill,  181.  So,  though  administration 
be  not  granted  for  a  long  time,  it  vests  the  property  in  the  admin- 
istrator by  relation,  from  the  death  of  the  intestate.  Ibid.  See 
also  4  Conn.  R.  347;  4  ib.  182. 

At  common  law,  the  appointment  of  an  executor  vests  the  whole 
personal  estate  of  the  testator  in  him,  as  trustee  for  the  purposes  of 
the  will;  and  he  holds  the  legal  title  in  all  the  chattels  of  the  de- 
ceased; and  for  the  purpose  of  administration  is  as  much  the  pro- 
prietor, as  was  the  testator.     14  Peters,  33;  2  B.  Mon.  226. 

Executors  in  England  took  the  unbequeathed  surplus,  where 
there  was  no  distributee,  under  a  presumption,  that  it  was  the 
intention  of  the  testator  that  he  should  have  it; — when  this  pre- 
sumption was  removed  by  a  bequest  to  the  executor,  the  residu- 
um belonged  to  the  king  as  trustee  for  his  subjects.  I  B.  Monroe, 
396-7. 

An  administrator  never  acquired  any  beneficial  title  to  an  in- 
testate's effects  in  consequence  of  a  failure  of  distributees.  He 
was  only  a  trustee,  and  held  in  such  case,  for  the  benefit  of  the 
king,  who  was  entitled  by  virtue  of  his  prerogative.     Ibid. 


*In  Pennsylvania,  the  court  will  not  dismiss  an  executor  or  administrator  on 
his  petition  to  be  discharged  from  his  duties,  without  first  appointing  auditors  to 
ascertain  the  facts,although  he  swears  he  never  received  any  money,  nor  did  any 
act  as  administrator.     1  Browne's  R.  289. 


OM.  XXX.]  ADMINISTRATION.  223 

'  Administrators  of  those  dying  without  distributees,  are  liable 
to  the  commonwealth  for  the  property,  or  the  value  thereof,  which 
came  to  their  hands,  and  the  sureties  are  liable  to  the  same  extent, 
without  regard  to  the  lapse  of  time.     Ibid.  400. 

§  10.  A  term  for  years  vests  in  the  executor  or  administrator, 
and  though  worthless,  he  cannot  refuse  it.  I  Salk.  299;  I  Vent. 
271. 

An  executor  as  such,  has  a  right  to  enter  goods  belonging  to 
his  testator  at  the  custom-house — 3  Mason,  126.  An  executor  is 
not  entitled  to  a  lapsed  legacy,  nor  a  surplus  undisposed  of.  2 
Hayw.486. 

An  executor  or  administrator  alone  can  represent  the  personal- 
ty— and  he  alone  can  give  a  valid  discharge  on  payment  of  the 
demand  due  to  the  testator  or  intestate.  4  Paige,  47;  2  B.  Mon- 
roe, 226. 

Whatever  property  or  money  is  lawfully  received  by  an  execu- 
tor or  administrator,  after  the  death  of  the  testator  or  intestate,  in 
virtue  of  his  representative  capacity,  he  holds  as  assets  of  the  es- 
tate, and  is  liable  therefor  to  the  party  entitled  thereto.  The 
knowledge  or  want  of  knowledge  by  an  administrator  of  the  rights 
of  persons  so  entitled,  does  not  affect  them.     14  Peters,  282. 

An  executor  who  is  also  trustee,  will  be  considered  as  holding 
the  property  as  executor,  and  not  as  trustee.     9  Pick.  395. 

So,  an  executor  or  administrator  represents  the  person  of  the 
deceased— Co.  Litt.  209— -And  he  is  assignee  in  law,  of  choses  in 
action,  &c.  of  his  testator  or  intestate.     I  Com.  dig.  adm'r.  B.  11. 

But  he  cannot  bind  his  intestate's  estate  by  contract  express  or 
implied.    2  Bailey's  So.  Car.  317. 

He  may  have  the  rights  and  must  perform  the  conditions  of  his 
decedent's  contracts — I  Com.  dig.  adm'r.  B.  11 — unless  the  duty 
or  right  be  personal  to  him  only.     Ibid.  . 

The  same  actions  the  testator  or  intestate  might  have  had,  his 
executor  or  administrator  shall  have.     Swinb.  part  6,  sec.  2,* 


*By  act  of  Mississippi,  "all  actions  commenced  by  or  against  a  deceased  dur- 
ing his  life,  (except  actions  for  slander,  and  for  torts  done  to  the  person,)  are  de- 
clared to  survive  to  the  executor — for  and  against  administrators  with  the  like 
effect,  as  if  had  or  mainuined  for  or  against  testator  or  intestate.  How.  &  H. 
Bee.  95,  414. 


224  ADMINISTRATION.  [CH.  XXX. 

When  K.  subscribes  to  a  work  to  be  published  in  numbers  and 
dies,  and  publisher  dies  before  completion  of  the  work,  and  his 
administratrix  afterwards  completes  it  and  sends  the  numbers  to 
K.,  he  is  bound  to  pay  for  the  numbers  so  delivered,  after  the  in- 
testate's death.     11  John.  R.  74. 

§  11.  None  but  the  executor  or  administrator  can  maintain  an 
action  for  claims  due  to  the  deceased — I  M'Cord's  Ch.  R.  148.* — 
Only  fraud  or  collusion,  &c.  can  authorize  a  legatee  to  sue  for 
debts  due  to  the  deceased.    2  ib.  514. 

The  owner  of  property  or  money  received  by  him,  may  resort 
to  him  in  his  personal  or  representative  character,  at  his  election. 
If  he  received  it  as  executor,  he  may  be  sued  as  such — and  shall 
not  be  allowed  to  throw  oif  that  capacity  so  as  to  defeat  the  own- 
er's action .     1 4  P  eters,  282. 

An  agreement  of  an  administrator  with  an  Ordinary  to  leave 
the  management  of  an  estate  with  a  third  person,  is  no  bar  to  an 
action  by  an  administrator,  against  such  person  for  money  of  the 
estate  in  his  hands,  although  the  Ordinary  has  forbidden  him  to 
pay  the  money  over  to  the  administrator.  I  Bailey's  So.  Car.  Ch. 
R.  206. 

In  an  action  by  an  administrator  for  the  conversion  of  the  goods 
of  his  intestate  after  his  death,  he  sues  in  his  individual  and  not 
his  representative  capacity ;  and  his  administration  forms  part  of 
the  title  and  must  be  proved,  though  the  defendant  has  not  crav- 
ed oyer  or  pleaded  ne  unq.  adm'r. — 2  Bailey's  R,  174;  4  Hill, 
(N.Y.)57. 

executor's  interest,  before  probate.  ;[ 

§  12.  An  executor's  interest  is  completely  vested  at  the  testator's 
death,  and  he  may  therefore  perform  almost  every  act  incident  to 
his  office,  before  probate  of  the  will.  Toller,  44;  I  Com.  Digest, 
adm'r.  B.  9;  1  T.  R.  480.t 


♦When  legatees  have  received  their  portions  before  debts  have  been  paid,  a 
creditor  may  file  his  bill  against  both  the  executor  and  legatees,  for  an  account. 
The  general  principle  that  executors  must  first  account,  has  its  exceptions. — 2 
M'Cord's  Ch.  R.  430. 

tin  Mississippi,  no  executor  or  administrator  is  allowed  to  take  himself  or  sell 
at  private  sale,  any  part  of  the  estate,  except  where  directed  by  the  will,  or  by 
legislature. — H.  &  H.  Bec.86,  p. 411.  They  may  sell  crop  of  cotton  or  corn  by 
order  of  the  court.— Ibid.  sec.  63  &.  107,  p. 403.  v  t. 


CH.  XXX.]  ADMINISTRATION.  225 

He  may  commence  suit  in  right  of  his  testator,  but  he  cannot 
declare  before  probate,  because  he  must  make  profert  of  his  let- 
ters testamentary,  but  when  produced  they  shall  relate  back  to 
the  time  of  suing  out  the  writ — Toller,  46 — even  if  obtained  at 
any  time  before  hearing. — Ibid,  citing  3  Bac.  abr.  53 — See  also 
Vent.  370.  It  is  sufficient  if  the  probate  appears  on  the  declara- 
tion.   Com.  dig.  adm.  B.  9;  3  P.  Wms.  349. 

But  it  is  not  so  with  an  administrator,  whose  authority  dates 
only  from  grant  of  his  letters.    I  Salk.  303. 

He  may  also  sue  in  his  own  right,  before  probate,  for  goods 
taken  after  the  testator's  death—Toll.  47 — even  though  the  goods 
have  never  been  in  the  executor's  possession.    Ibid* 

In  Virginia,  it  has  been  decided  that  an  executor  being  requir- 
ed to  qualify  by  giving  bond  with  surety,  before  acting,  a  sale  of 
the  testator's  goods  made  by  one  of  the  executors  not  having  so 
qualified,  would  be  void  against  an  executor  who  had  given  bond 
— though  the  sale  was  made  for  a  valuable  consideration,  and  at 
a  time  when  there  was  no  qualified  executor.    4  Munf.  104, 194, 

In  Mississippi,  the  statute  (How.  &  H.  p.  390)  also  requires  a 
similar  bond  of  the  executor,  and  the  effect  would  be  the  same. 
It  may  be  therefore  laid  down,  that  the  acts  of  an  executor  to 
whom  letters  testamentary  have  not  been  granted,  are  invalid. — 
See  16  Wend.  579.    But  see  7  How.  150. 


*A  woman  and  another  person  were  executors.  The  woman  married — her 
husband  did  not  alter  the  property  of  the  testatoi's  goods — the  wife  died: — Held^ 
the  other  executor  might  sue  the  husband  in  detinue  for  the  goods.  Swinb.  part 
6,  sec.  2. 


29 


226  EXECUTOR — ^DE  SON  TORT.  [CH.  XXXL 

CHAPTER  XXXL 
ExEcvTOR—'dc  son  tort. 

§  1.  Before  further  enquiry  respecting  lawful  executors  and 
administrators,  it  seems  to  be  appropriate  first  to  ascertain  the 
nature  of  what  the  law  denominates  an  Executor  de  son  tort. — 
For  it  is  only  before  a  lawful  executor  or  administrator  has  quali- 
fied, that  any  person  can  constitute  himself  such,  by  tortiously 
intermeddling  with  the  goods  of  a  decedent — Toller,  40 — After 
such  appointment,  he  is  regarded  only  as  a  trespasser. — Ibid. — 
12  Connect.  212.  The  reason  is,  that  all  the  assets  can  be  ren- 
dered available  by  a  resort  to  the  proper  executor  or  administrator. 
Ibid. 

§  2.  An  executor  de  son  tort,  then,  is  one  who,  (before  the  ap- 
pointment of  an  executor  or  administrator,)  and  without  any  au- 
thority from  the  testator,  assumes  the  office  of  executor  or  admin- 
istrator, by  his  own  intrusion  and  interference— Toll.  35 — and  this 
though  he  may  have  been  appointed  executor  in  another  State, 
and  received  assets  there,  which  he  brought  into  this  State,  and 
collected  debts  of  decedent  here.    7  Cowen,  64. 

Various  acts  constitute  one  an  executor  de  son  tort,  which,  how- 
ever, may  all  be  briefly  summed  up,  in  the  act  of  intermeddling 
with  the  goods  of  a  deceased  person,  without  any  authority  so  to 
.do--Toller,  38;  3  Penn'a.  R.  129;  7  S.  &  R.  196— and  examples 
there  cited. 

Where  there  is  neither  a  will,  nor  an  administrator,  nor  repre- 
sentation of  insolvency,  the  intermeddling  of  a  stranger  with  the 
goods  of  the  decedent,  by  taking  and  claiming  them,  will  consti. 
lute  him  executor  de  son  tort.— 12  Count.  212.  Any  intermeddling 
by  a  stranger  will  make  him  liable  to  strangers,  so  far  as  assets 
have  come  to  his  hands.  2  M'Cord,  516;  3  Penn'a.  R.  129;  4 
Mass.  654;  7  Cowen,  64. 

If  A.'s  servant  collect  money  of  C.  an  intestate,  by  authority 
&om  C.  in  his  life-time,  and  pay  the  same  to  A.,  the  latter  is  liable 


CH.  XXXI.]  EXECUTOR DE  SON  TORT.  d^T 

as  executor  dt  son  tort,  if  he  do  not  pay  over  the  money  to  C.'s 
representative.     Toll.  39. 

If  collector,  appointed  by  the  Ordinary,  exceeds  his  authority, 
and  sell  any  of  the  goods,  even  such  as  are  perishable,  he  becomes 
an  executor  de  son  tort,  even  if  he  had  the  express  order  of  the 
Ordinary  so  to  do,  the  same  being  illegal.     Toller,  38.* 

A  man  may  be  charged  as  executor  de  son  tort,  in  respect  to 
goods  which  he  has  in  possession,  by  an  assignment  or  convey- 
ance from  the  deceased,  if  such  assignment  or  conveyance  be 
tainted  either  with  moral  or  legal  fraud.  3  Penn'a.  R.  129;  6 
Yerg.221;  7  John.  161. 

But  one  setting  up  a  fraudulent  claim  to  goods,  does  not  thereby 
make  himself  executor  de  son  tort,  though  he  may  thereby  injure 
the  estate.    6  Yerg.  221.t 

A  widow  undertook,  after  her  husband's  death,  to  dispose  of 
his  chattels,  and  sold  part  to  the  defendant,  who  gave  his  note 
for  them  to  her.  He  afterwards  became  administrator  of  her  de- 
ceased husband. — Held:  she  could  not  recover  the  amount  of  the 
note  from  him,  she  having  acted  as  executor  de  son  tort,  and  there 
being  no  evidence  of  any  rightful  payments  made  by  her  on  ac- 
count of  the  estate.     10  Watts,  287. 

I.  being  in  debt,  and  0.  being  his  surety,  I.  conveyed  proper- 
ty to  0.  to  secure  him,  and  delivered  it  to  0.,  with  verbal  author- 
ity to  sell,  in  case  he  became  liable.  I.  died,  and  0.  having  been 
rendered  liable  and  paid  I.'s  debt,  sold  the  property  to  idemnify 
himself;  H.,  a  creditor  of  I.,  sued  0.  as  executor  de  son  tort  of  I. : 
Held,  that  0.  was  not  thereby  made  such  executor.  2  Sm.  &  M. 
728. 


*By  act  of  Mississippi,  Courts  of  Probate  may  authorize  administrators  ad  col- 
ligendum, to  soil,  immediately  after  the  appraizement,  such  goods  as  are  perish- 
able cr  not  to  be  preserved.    How.  &  H.  sec.  26,  p.  303. 

t  By  act  of  Mipsissippi,  '•  if  any  one  alipne  or  embezzle  any  of  the  goods  and 
chattels  of  a  decedent  before  taking  out  letters  of  administration  or  testamentary 
and  exhibiting  a  true  inventory  of  all  the  decedent's  estate,  he  shall  be  liable  as 
executor  de  son  tort. — How.  &  H.  sec. 97,  p. 41 5.  Query? — Cannot  a  lawful  ex- 
ecutor, who  has  not  "returned  an  inventory,"  render  himself  an  executor  de  son 
tort  under  this  act,  by  either  "aliening  or  embezzling"  the  goods  and  chattelb 
of  the  decedent? 


228  EXECUTOR — DE  SON  TORT.      [CH.  XXXL 

0.  having  received  property  from  I.,  to  idemnify  0.  from  loss 
by  securities  for  I.,  with  power  to  sell  in  case  of  loss.  I.  died ;  no 
administration  on  his  estate  was  taken  out.  0.  sold,  in  accord- 
ance with  the  power,  and  after  having  paid  off  his  liabilities  for  I. 
had  a  surplus  of  the  proceeds  on  hand :  Held,  in  a  suit  against 
0.,  charging  him  with  being  executor  de  son  tort  of  I.,  that  the 
fact  of  the  surplus  money  belonging  to  I.,  in  the  hands  of  0.,  at 
the  time  of  suit,  was  not  evidence  of  his  being  executor  de  son 
tort,  there  being  no  representative  of  I.  to  receive  the  money. — 
Ibid. 

It  is  competent  for  a  person,  sued  as  an  executor  de  son  tort,  to 
prove  that  a  surplus  fund  remaining  in  his  hand,  after  a  sale  of 
the  property  conveyed  to  him  by  his  alleged  testator,  to  indemni- 
fy him  for  liabilities,  and  the  payment  of  those  liabilities,  was  by 
the  alleged  testator  in  his  life-time,  ordered  to  be  paid  to  other 
persons  than  the  plaintiff  in  the  suit,  and  to  that  end  to  introduce 
in  evidence  to  the  jury  a  deed  of  trust,  between  the  alleged  testa- 
tor and  said  other  persons.     Ibid. 

§  3.  But  there  are  many  acts  of  kindness  and  charity  which  one 
may  perform  without  being  implicated  as  exefcutor  de  son  tort, 
such  as,  preserving  goods  under  lock,  defraying  funeral  expenses, 
making  inventory,  providing  for  decedent's  family,  &c.  Toller, 
39,40;  12Connt.212. 

What  constitutes  an  executor  de  son  tort,  is  a  question  of  law 
for  the  court,  and  not  of  fact  for  the  jury.     7  S.  &  R.  192. 

§  4,  No  intermeddling  with  land  will  make  one  an  executor 
de  son  tort,  it  being  a  wrong  to  the  heir — 4  Mass.  659.  Therefore 
lands  of  a  decedent  cannot  be  sold  under  a  judgment  against  one 
as  executor  de  son  tort--4  Mass.  659,  7  S.  &  R.  192;  10  ib.  144. 
But  to  raise  an  equity  in  the  purchaser  under  the  judgment,  proof 
is  admissible  in  ejectment  against  him  for  the  land,  that  the  heirs 
of  the  testator  stood  by  and  saw  the  defendant  take  possession, 
make  improvements,  &c.— -10  S.  &  R.  144. 

And  although  one  may  become  executor  de  son  tort,  of  a  term 
or  lease,  actually  existing,  yet  a  general  entry  on  land  of  which 
there  is  no  term  existing,  makes  him  disseizor  in  fee,  and  not  ex- 
ecutor de  son  tort.    Toller,  40. 


CH.  XXXI.]  EXECUTOR — DE  SON  TORT. 

§  5.  Intermeddling  makes  an  executor  de  son  tort,  though  he 
may  afterwards  qualify  as  administrator,  but  he  may  then  retain — 
6  Yerger,  221;  15  Mass. -322;  8  John.  126.  But  if  he  claims  un- 
der a  grant  of  letters  void  as  to  creditors,  he  will  still  be  executor 
de  son  tort.    Ibid. 

Taking  out  letters  of  administration,  will  legalize  acts  before 
tortious — 8  John.  R.  126;  I  Hill's  Ch.R.  33.  And  intermediate 
judgments  against  him,  without  fraud  or  collusion,  will  be  good 
against  him  as  legal  administrator.     Ibid. 

And  he  may  by  taking  letters  of  administration,  legalize  his 
former  acts,  even  after  the  commencement  of  a  suit  against  him 
—15  Mass.  322,  325;  8  John.  R.  126— but  not  so  as  Id  affect  such 
suit. — Ibid.  And,  if  another  has  taken  out  administration,  then 
the  executor  de  son  tort  must  have  delivered  over  the  goods  to  the 
rightful  administrator,  before  action  commenced,  in  order  to  be  dis- 
charged from  the  action,     ihid.  335. 

Where  a  widow  receives  payment  of  notes  belonging  to  her 
husband's  estate,  and  subsequently  united  with  another  in  letters 
of  administration,  and  they  then  sued  on  the  note — Held,  notwith- 
standing the  statute  respecting  executors  de  son  tort,  the  letters 
related  back  to  the  time  of  the  intestate's  death,  and  therefore  pay- 
ment to  the  widow  was  a  bar  to  the  action,    2  Hill,  225. 

§  6.  An  executor  de  son  tort,  having  no  legal  control  over  the 
estate  of  a  deceased  person,  and  no  authority  to  collect  his  effects, 
and  his  interference  being  unlawful, — if  when  sued,  he  falsely 
denies  that  he  is  an  executor,  he  is  made  chargeable,  by  his  false 
plea,  for  the  debt,  out  of  his  own  estate,  if  he  have  not  personal 
estate  of  the  deceased  sufficient  to  pay  it.  4  Mass.  654,  658;  1 
Hill's  Ch.  R.  167;  4  B.  Monroe,  140;  7  Cowen.  64.  •   3  ^ 

In  South-Carolina,  an  executor  de  son  tort,  may  plead  plene 
administravit,  but  cannot  retain,  though  his  claim  be  of  greater 
dignity — 1  Bailey's  R.42:  9  Yerg.450 — unless  he  afterwards  qual- 
ifies as  administrator.     6  Yerg.  221. 

Though  an  executor  de  son  tort  cannot  plead  payment  of  debts 
in  bar  of  an  action  by  the  rightful  administrator  or  representative, 
yet  he  may,  under  the  general  issue  in  trover,  give  such  payments 
in  evidence  in  mitigation  of  damages — 4  Watts,  432.     But  en- 


230  EXECUTOR DE  SON  TORT.       [CH.  XXXI. 

tries  in  the  day-book  of  an  executor  de  son  tort,  are  not  admissi- 
ble as  evidence  of  debts  of  the  decedent  paid  by  him.    Ibid. 

An  executor  de  son  tort  may  discharge  himself  against  the  right- 
ful administrator  by  proving  debts  paid  to  the  amount  of  the 
goods  received  and  belonging  to  the  deceased — 9  Mass.  74.  But 
some  doubt  was  expressed  in  this  case,  whether  he  would  not  be 
liable  for  goods  still  in  his  custody.     Ibid.  77. 

But,  it  seems,  if  executor  de  son  tort,  sell  the  property  and  pay 
the  debts,  the  rightful  administrator  or  executor  cannot  disturb  the 
purchaser ;  but  if  not  to  pay  debst,  he  transfers  nothing.  2  Hay- 
wood, 375. 

§  7.  An  executor  de  son  tort  is  not  liable  to  the  distributees  on 
a  petition  filed  by  them  against  him,  as. rightful  executor;  for  if 
a  decree  be  rendered  in  favor  of  petitioners,  and  they  receive  the 
property,  they  thereby  become  themselves  executors  de  son  tort, 
and  a  court  of  Equity  will  not  become  accessory  to  such  an  act,  or 
so  far  disregard  the  rights  of  creditors.    2  Murph.  335. 

An  executor  de  son  tort  is  liable  to  the  action  of  the  lawful  ex- 
ecutor or  administrator,  or  of  a  creditor.  If  there  be  a  lawful  ex- 
ecutor, they  may  be  joined  in  an  action  by  the  creditor,  or  sued 
separately.     3  Penn'a.  R.  130. 

An  executor  de  son  tort  is  liable  only  to  the  extent  of  the  value 
of  the  assets  which  came  to  his  hands.  He  may  protect  himself 
as  the  rightful  executor  by  plea.     Ibid. 

The  act  of  1789,  (S.Car.)  which  protects  executors  and  admin- 
istrators from  suit,  until  nine  months  after  the  death  of  the  testa- 
tor or  intestate,  does  not  apply  to  executors  de  son  tort.  1  Hill's 
Ch.  R.  50. 

§  8.  The  laws  of  Ohio  do  not  recognize  an  executor  de  son  tort. 
5  Ohio  R.  533. 

The  laws  of  New-Hampshire  do.— 2  N.  H.  475,  477.— So  of 
Masssachusetts — 4  Mass.  654;  15  ib.  322,  325 — and  of  Connecti- 
cut--l  Root,  104— So  of  New-York--7  John.  161;  8  ib.  97;  7 
Cowen,  34— And  of  Pennsylvania--7  S.  &  R.  192;  3  Penn.  129; 
—And  of  Maryland-2  Gill.  &  John.  493;  6  Har.  &  John.  61— So 
of  Virginia-I  Tucker's  Comm.  399;  2  Rand.  297— And  of  South- 
Carolina-2  M'Cord,  516;  4  ib.  285;  1  ib.  107— So  of  North-Car- 


CH.  XXXII.]  EXECUTOR — HOW  QUALIFIED.  231 

olina— 2  Hayw.  373 — So  of  Tennessee— 6  Yerger — And  of  Mis- 
sissippi— see  note  to  sec.  2,  ante. 


-J? 


/ 


CHAPTER  XXXII. 


EXECUTOR HOW    QUALIFIED. 


§  1.  In  England,  the  jurisdiction  of  probating  wills  belongs  to 
the  Bishop  of  the  diocese,  in  which  the  testator  resided  at  the 
time  of  his  death.  This  general  rule  is  subject  to  a  few  excep- 
tions, founded  on  local  usage.    Toll.  50. 

If  all  the  effects  lie  in  one  diocese,  the  executor  ought  to  appear 
before  the  Bishop,  or  his  surrogate,  and  prove  the  will. 

If  there  be  bona  notabilia,  in  different  dioceses,  within  the  same 
province,  the  will  must  be  proved  before  the  metropolitan — but 
if  in  two  provinces,  the  Archbishop  of  each  shall  grant  probate 
within  his  respective  province. 

If  in  two  different  dioceses  of  one  province,  and  in  one  dio- 
cese of  the  other  province,  in  respect  to  the  former  the  Archbish- 
op shall  have  jurisdiction — in  respect  to  the  latter,  the  Bishop  of 
the  diocese. 

So,  if  the  testator,  not  in  itinere,  die  in  one  province,  leaving 
bona  notabilia  in  another,  the  Archbishop  shall  have  jurisdiction. 

And  if  a  man  have  two  houses  in  diflferent  dioceses,  and  re- 
sides chiefly  at  one,  but  sometimes  goes  to  the  other,  and  being 
at  the  latter  for  a  day  or  two,  dies,  leaving  no  bona  notabilia  in 
the  first  mentioned  house,  probate  shall  be  granted  where  he  died, 
for  he  was  commorant  there,  and  not  in  itinere.    Toll.  51, 52. 

If  there  be  bona  notabilia  in  England  and  Ireland,  several 
probates  shall  be  granted  by  the  Archbishop  or  Bishop  of  Eng- 
land, or  of  Ireland,  as  the  case  may  require.    Toll.  53. 


232  EXECUTOR HOW  QUALIFIED.  [CH.  XXXIC. 

§  2.  The  law  of  England,  as  laid  down  in  the  preceding  sec- 
tion, though  useful  as  affording,  by  analogy,  a  rule  for  the  inter- 
pretation of  legislative  acts  of  this  country,  on  the  same  subject, 
has  necessarily  undergone  much  alteration  in  the  different  States, 
while  at  the  same  time  its  identity  has  been  sufficiently  preserv- 
ed to  render  many  decisions  in  relation  to  it,  applicable  to  our 
own  system. 

§  3.  In  Mississippi,  it  is  enacted  that  the  probate  of  wills  shall 
be  granted  by  the  Judge  of  Probates,  according  to  the  rules  laid 
down  in  sec.  5,  ch.  28,  p.  200,  antt. 

It  is  further  enacted,  that  on  the  exhibition  of  any  will,  "the 
court  having  jurisdiction  as  aforesaid,"  may  grant  letters  testa- 
mentary.   How.  &  H.  ch.  33,  sec.  17,  p.  389. 

And  further,  that  "before  granting  any  letters  testarhentary,  &c. 
the  executor  or  administrator  shall  execute  a  bond  with  such  se- 
curity as  shall  be  approved  by  the  court,  in  a  penalty  equal  to  the 
full  value  of  the  estate ;  and  also,  to  take  an  oath,"  &c.  (For  form 
of  bond  and  oath,  see  How.  &  H.  sec.  20,  p.  390.) 

And  further,  executors  shall  not  be  compelled  by  the  court,  to 
give  security,  if  exempted  by  the  will  itself.  How.  &  H.  sec.  21, 
p.  391.  But  if  the  court  see,  or  creditors  suggest  cause  to  suspect 
the  executors  of  fraud,  or  that  the  personal  estate  will  not  be  suffi- 
cient to  pay  the  debts  of  the  deceased,  the  courts  may  and  should, 
even  then,  require  a  bond  with  security.  How.  &  H.  sect.  21, 
p.  391. 

And  further,  it  is  required,  that  where  letters  testamentary 
shall  have  been  granted  as  aforesaid,  publication  thereof,  once  a 
week,  for  six  successive  weeks,  shall  be  made  within  two  months 
after  the  grant  of  the  letters,  giving  notice  to  all  persons  having 
claims  against  the  estate  of  the  testator,  to  exhibit  the  same  with- 
in the  time  limited  by  law,  or  the  same  shall  be  forever  void. — 
How.  &  H.  sec.  92,  p.  414. 

And  no  letters  testamentary  shall  be  granted  till  after  the  ex- 
piration of  fourteen  days  from  the  death  of  the  testator  or  testa- 
trix, nor  till  the  widow  if  any,  and  next  of  kin,  if  resident  in  the 
State,  have  been  summoned  to  contest  the  same,  if  proper.  How. 
&  H,  sec.  8,  p.  389. 


CH.  XXXIU.]       ADMINISTRATOR — APPOINTMENT.  233 

i  The  provisions  of  tlie  will  mark  out  the  duties  of  an  executor — 
6  Halst.  145;  Cox,  210 — Any  deviation  is  illegal.    IWl. 

As  all  the  decisions  on  the  subject  of  the  foregoing  chapter, 
are  equally  applicable  to  administrators,  they  will  fall  under  the 
latter  head  in  the  next  chapter. 


CHAPTER  XXXIII. 

ADMINISTRATOR WHEN  AND  HOW  APPOINTED. 

§  1.  Administrators  may  be  appointed — 

1st.  Where  no  executors  are  named  in  a  will: 

2d.  Where  all  the  executors  named  in  the  will  refuse  the  ex- 
ecutorship— or, 

3d.  Where  they  renounce  the  same — or, 

4th.  Being  required  to  give  security,  shall  all  refuse  or  fail  so 
to  do — or, 

5th.  Where  the  executor  named  is  disqualified — How.  &  H. 
sec.  14,  p.388--sec.l8,  389--sec.22,  391— or, 

6th.  Where  letters  testamentary  are  superseded — Sec.  44,  397 
---sec.  45,  46,  47,  48,  p.  397,  399— or, 

7th.  During  any  contest  about  a  will,  or  during  the  infancy  or 
in  the  absence  of  executor  or  executors,  or  until  a  will  which  may 
have  once  existed  but  is  destroyed,  can  be  established — How.  & 
H.  sec.  24,  392.  For  form  of  letters,  bond,  and  oath,  in  this  last 
case;  see — HM. 

All  these  will  be  severally  spoken  of  hereafter. 
30 


234  ADMINISTRATOR — APPOINTMENT.       [CH.  XXXUl. 

§  2.  At  common  law,  no  person  had  a  right  to  administer,  but 
the  Ordinary  could  grant  administration  to  whom  he  pleased,  till 
the  statute  gave  it  to  the  next  of  kin.  Perk.  525;  Toml.  law  Dicty. 
201.  The  right  to  administer  is  statutory.  It  belonged  to  the 
king  as  parens  patrice,  through  his  county  courts,  till  statute  31st 
Edward  III.  required  their  appointment  by  the  Ordinary,  and 
made  them  accountable  as  executors.     1  B.  Monroe,  396. 

§  3.  So  long  as  a  qualified  executor  is  capable  of  exercising  his 
authority,  it  cannot  be  conferred  with  or  without  limitation,  by 
the  Ordinary,  on  any  other  person. — 8  Cranch.  9.  Where  there 
is  an  executor  with  power  not  limited  by  the  will,  a  grant  of  ad* 
ministration  is  void. — 3  Dana,  130.  So,  a  grant  of  administration 
during  the  absence  of  an  executor  under  no  disability  is  void,  be- 
ing only  an  appointment  of  an  agent  to  the  executor,  which  only 
the  executor  can  do. — 8  Cranch.  9. — (But  see  avie  sec.  1,  para- 
graph 7,  which  authorizes  the  appointment  of  an  adm'r.  during 
the  absence  of  the  executor.) 

So  letters  of  general  administration,  pendente  lite,  about  the 
validity  of  a  will,  is  void,  and  the  letters  are  not  even  good  as 
letters  pendente  lite.    3  Iredell,  557. 

§  4.  If  administration  be  given  by  the  wrong  court,  it  is  void ; 
if  to  the  wrong  person,  it  is  only  voidable — and  his  acts  are  valid. 
4  Yerg.  16.  But  if  one  be  appointed  administrator,  while  there  is 
a  lawful  executor,  his  acts  are  void. — lb. — 3  Dana,  130. 

And,  if  there  be  a  will,  which  is  concealed,  and  an  adminis- 
trator be  appointed,  his  acts  are  good  and  valid.  In  this  respect 
the  English  law  prevails— 5  Pick.  201;  Taylor's  N.  Car.  R.105— 
(see  also  How.  &  H.  395)— 14  Peters,  33;  1  Hill's  Ch.  R.  461— 
even  though  the  suppression  of  the  will  was  obtained  by  fraud. 

When  a  will  is  produced,  the  administrator  and  his  sureties 
are  liable  by  the  condition  of  their  bond,  to  those  entitled  to  leg- 
acies under  the  will.    9  Dana,  90. 

§  5.  If  administration  is  granted  on  the  estate  of  a  person  not 
really  deceased,  the  act  is  void — 8  Cranch.  9.  For,  to  give  juris- 
diction to  the  Court  of  Probates,  a  case  must  be  brought  before 
him,  in  which,  by  law,  letters  of  administration  may  issue. — Ibid. 
See  sec.  8,  post. 


CH.  XXXlll.]       ADMINISTRATOR — APPOINTMENT.  235 

§  6.  The  cases  in  which  administration  has  been  granted  not- 
withstanding the  will,  are  cases  in  which  it  is  not  apparent  that 
there  is  any  other  person  possessing  the  right,  or  cases  in  which 
that  person  is  disqualified  from  acting.  As,  where  administra- 
tion is  granted  pending  a  controversy  respecting  a  will ;  and  it  is 
not  certain  that  there  is  a  will  or  not.    8  Cranch.  9. 

If  administration  be  granted  during  minority  of  the  executor, 
it  is  because  the  executor  is  legally  disqualified  from  acting,  and 
indeed  has  not  taken  and  could  not  take  on  himself  the  trust. — 
He  may,  when  of  age,  reject  all  the  right  and  powers  conferred 
by  the  will,  and  consequently  his  interest  is  not  a  vested  interest. 
Ibid.  In  the  case  of  an  absent  executor  not  qualified,  and  who  is 
not  able  to  act,  the  Ordinary  may  appoint  an  administrator  dur- 
ante absentia. — But  otherwise,  if  such  executor  has  proved  the 
will.     Ibid. 

§  7.  The  power  of  granting  letters  of  administration,  and  hear- 
ing and  determining  the  right  to  the  same,  shall  pertain  to  the 
Orphan's  court  (court  of  Probates,)  of  the  county,   where 

1st.  The  intestate  had,  at  the  time  of  his  death,  a  known  place 
of  residence,  or  a  mansion-house. 

2d.  If  he  or  she  had  no  such  place  of  residence,  then  where 
intestate  died,  or  where  his  or  her  estate,  or  the  greater  part  there- 
of, shall  be.    How.  &  H.  sec.  35,  p.  395. 

Where  the  deceased  had  no  fixed  place  of  residence,  adminis- 
tration is  properly  granted  by  the  Judge  of  the  county  where  he 
died. — 2  Dev.  73.  In  North-Carolina,  the  county  courts  have 
power  to  grant  administration  of  the  effects  of  persons  who  resi- 
ded and  died  in  another  State.     1  Iredell,  345 — (see  ante  211.) 

The  right  to  a  distributive  share  constitutes  such  bona  notabilia, 
as  will  entitle  the  court  of  the  county  where  the  share  is,  to  grant 
administration.     1  Iredell,  345. 

§  8.  Grant  of  administration  by  a  judge  having  no  jurisdiction 
is  void,  even  though  no  exception  be  taken  thereto.  21  Pick. 
101.    See  sec.  4. 

So,  where  there  is  a  grant  of  special  administration  by  a  judge 
who  is  interested — 22  Pick.  507— -as  by  a  judge  having  a  claim 
against  the  estate,  even  though  the  judge  did  not  intend  to  enforce 


236  ADMINISTRATOR — APPOINTMENT.       [CH.  XXXlll. 

it --21  Pick.  101 — otherwise,  if  he  relinquish  his  demand. — 5 
Pick.  483. 

The  grant  of  original  administration,  made  twenty  years  after 
the  death  of  the  intestate,  is  void.    2  Mass.  120;  5  Pick.  20. 

A  grant  of  administration  originally  void,  and  not  merely  void 
able,  can  acquire'no  validity  from  an  acquiescence  of  twenty  years, 
or  any  longer  period — 5  Pick.  20 — And  acts  in  pais  are  admissi- 
ble as  evidence  to  show  acts  to  be  void.  9  Pick.  239 — see  sec.  5, 
ante. 

§  9.  In  granting  such  letters,  the  court  shall  prefer — 

1st.  The  husband  or  wife  :* 

2d.  Such  as  are  next  entitled  to  distribution,  or  one  or  more  of 
them,  as  will  best  manage  the  estate. 

3d.  If  no  such  person  apply  within  sixty  days  from  the  death  of 
the  intestate,  or  at  the  next  succeeding  court  after  the  expiration 
thereof,  to  any  creditor  or  creditors  who  apply  for  the  same,  or  to 
any  other  person  the  court  in  their  discretion  think  fit.  How.  & 
H.  sec.  35,395. 

Where  the  court  grants  adminstratioh,  it  is  prima  facie  evi- 
dence of  right. — 3  Humph.  142.  Letters  are  properly  granted  on 
appearance  of  next  of  kin. — Ibid.  Such  appearance  is  a  waiver 
of  citation.    Ibid. 

If  administration  is  granted  when  next  of  kin  is  out  of  the 
county,  it  shall  be  durante  absentia.     1  Hayw.  220. 

The  next  of  kin  residing  abroad,  may  designate  an  administra- 
tor.    1  Iredell,  345. 

The  Surrogate  has  discretion  to  grant  administration  to  any  one 
of  the  next  of  kin  to  the  exclusion  of  all  the  rest.  2  C.  C.  E.  143, 
Taylor  vs.  Delancey. 

Between  brothers,  the  court  will  grant  administration  to  the 
one  most  interested  in  faithfully  executing  it.    I  Dev.  352. 

The  court  should  not  grant  administration  to  any  not  named 
in  the  act,  till  those  designated  shall  refuse — I  Hayw.  220 — and 
if  he  does,  the  grant  is  void,  and  the  court  should  revoke  it— lb. 


*'In  Kentucky,  a  widow  residing  out  of  the  State,  bars  her  claim  to  administra- 
tion.   5  Dana's  R. 


CH.  XXXlll.]       ADMINISTRATOR APPOINTMENT.  237 

2  Hill's  Ch.  R.  603;  19  Pick.  336.  And  when  there  are  none 
such  as  are  designated  in  the  act,  (or  they  do  not  appear  within 
the  limited  time,)  the  Ordinary  alone  can  grant  letters  ad  colli- 
gendum.    Ibid. 

If  administration  cannot  be  granted  to  next  of  kin,  owin^  to 
some  incapacity,  it  shall  be  to  next  after  him  qualified  to  act,  and 
the  creditor  be  postponed — if  any  of  them  apply  within  the  time 
prescribed  by  law.    2  Murphy,  268. 

A  motion  to  revoke  letters  of  administration,  on  the  ground  that 
the  administrator  is  not  next  of  kin,  can  be  made  only  at  the  in- 
stance of  the  next  of  kin.    I  How.  322. 

By  the  statute  of  this  State,  Mississippi,  the  husband  or  wife, 
and  where  there  is  no  husband  or  wife,  the  next  of  kin,  has  a 
right  to  the  administration  of  the  estate  of  the  deceased,  unless 
under  twenty-one  years  of  age,  of  unsound  mind,  incapable  ac- 
cording to  law  of  making  a  contract,  or  a  convict  of  some  crime 
rendering  him  infamous — 3  How.40.  As  regards  others,  appoint- 
ment is  a  matter  within  the  sound  discretion  of  the  court — 1  How. 
568.  The  court  may  join  a  discreet  person  with  the  widow  or 
husband--4  Mass.  348;*  5  J.  J.  Marsh.  210. 

If  the  person  entitled  to  distribution  be  a  minor,  the  Probate 
court  may  appoint  an  administrator,  during  his  minority.  5  How. 
288;  I  Hayw.  220. 

When  the  nearest  of  kin  are  subjects  of  and  resident  in  a  hos- 
tile country,  administration  should  be  granted  to  the  next  of  kin 
in  this  State~-2  Murph.  268;  I  Car.  L.  R.  247--but  if  resident 
within  the  State,  an  alien  enemy  may  act,  by  the  permission  of 
the  proper  authority.     Ibid. 

The  county  court  has  power  to  revoke  letters  of  administration 
during  the  same  term,  and  to  grant  them  to  another.    I  Dev.  352. 

§  10.  In  a  common  case  of  intestacy,  the  Ordinary  must  grant 
administration  to  some  person,  and  though  he  should  grant  it  to 
one  not  legally  entitled  by  law,  the  act  is  binding,  till  annulled 


*Administration  should  be  granted  to  a  daughter  in  preference  to  the  son  of 
the  eldest  son  of  the  intestate.     1  Root,  52. 

A  distributee  will  bo  preferred  to  a  creditor  when  they  apply  loucther. — f, 
Leigh,  267.  Between  persons  equally,  entitled,  the  Court  may  select. — 2  Caine't 
Cases,  143. 


238  BOND  OF  EXEC^RS  AND  ADM'rS.        [cH.  XXXIV. 

by  the  competent  authority — 8  Cranch.  9 — but  if  granted  in  the 
wrong  county,  it  would  be  void.  (Note  the  distinction,  and  see 
ante  page  234,  sec.  4.) 

§  11.  Before  granting  such  administration,  the  administrator 
shall  take  the  following  oath,  viz : 

1st.  If  there  be  no  executor,  "that  the  deceased  died  without  a 
will,"  &c.— How.  &  H.  sec.  37,  p.  396. 

2d.  In  case  the  executor  renounce,  in  which  case  administra- 
tion, with  the  will  annexed,  will  be  granted — "that  the  writing 

contains  the  true  last  will  and  testament  of  ( )  as  far 

as  he  knows  and  believes,"  &c. — How.  &  H.  sec.  20,  p.  390. — 
And  where  the  executor  is  removed,  the  oath  shall  be  the  same, 
except  that  the  words  "not  already  administered,"  shall  be  insert- 
ed in  the  proper  places. — Sec.  44,  p.  398. 

And  he  shall  also  execute  a  bond  as  follows: — In  the  first  case 
above  stated,  the  bond  shall  be  as  prescribed  in  How.  &  H.  see. 
37,  p.  396 — and  in  the  second  case  above  stated,  it  shall  be  as  in 
How.  &  H.  sec.  20,  p.  390,  and  sec.  44,  398: 

For  bond  of  administrator  ad  colligendum,  see  that  head,  -post. 


CHAPTER  XXXIV. 

BOND  OF  EXECUTORS  AND  ADMINISTRATORS. 

§  1.  In  Kentucky,  an  administrator's  bond  should  be  payable 
to  the  Commonwealth,  but  it  is  not  void,  if  the  justices  of  the 
county  court  by  their  names,  are  obligees.  I  Dana,  514 — see 
"post.  sec.  7. 

A  defective  bond  does  not  vitiate  the  acts  of  the  administrator. 
9  Dana,  102. 

But  the  office  of  the  administrator  is  not  complete,  till  a  bond 
is  given. — 4  Humph.  79.    (So,  as  to  executor  under  the  act,  in 


CH.  XXXIV.]        BOND  OF  EXEC^RS.  AND  ADM'rS.  239 

Mississippi — See  ante  sec.  12,  p.  225.)  But  if  an  administrator, 
after  his  appointment,  proceed  to  settle  the  estate,  and  the  next  of 
kin  after  five  years,  applies  for  letters,  his  petition,  if  the  admin- 
istrator will  then  execute  a  bond,  shall  be  dismissed.   4  Humph.  79. 

In  North-Carolina,  the  giving  a  bond  is  not  a  condition  prece- 
dent to  the  appointment  of  an  administrator ;  and  although  an 
administrator  and  sureties  sign  a  blank  bond,  the  acts  of  the  ad- 
ministrator are  valid,  till  the  revocation  of  his  letters. — 4Dev.225; 
2  ib.  360.  A  grant  of  administration  to  A.  on  B.'s  estate,  A.  giv- 
ing bond,  is  unconditional — 2  Dev.  360.  Letters  of  administration 
are  only  a  certified  copy  of  minutes,  under  the  seal  of  court.  2 
ib.  360.* 

An  administrator  local,  as  well  as  domiciliary,  is  himself  liable, 
independently  of  his  bond,  for  all  assets  received  by  him.  7 
Dana,  553. 

§  2.  Where  an  administration  bond  is  joint,  one  administrator 
is  liable  for  the  acts  of  his  co-administrator — 2  Brock.  C.  C.  R.  159 
— and  for  the  whole — Ib.  403.  But  unless  such  co-administra- 
tor or  his  representatives  be  before  the  court,  the  report  of  such 
balance  cannot  affect  him — Ib.  403.  One  executor  is  not  liable 
for  the  devastavit  of  his  co-executor.  10  Peters,  532;  2  Bailey's 
So.  Car.  R.  403, 

The  result  of  the  cases  seems  to  be,  that  where,  by  act  done  by 
an  executor,  any  part  of  the  estate  comes  to  the  hands  of  the  co- 
executor,  the  former  will  be  responsible  for  the  latter — in  like  man- 
ner as  for  a  stranger — whom  he  had  enabled  to  receive  it,  and 
there  is  no  distinction  as  respects  their  liabilities,  between  credit- 
ors and  legatees — 2  Hill's  Ch.  R.  293.  Thus,  an  executor,  who 
applies  to  the  Ordinary  for  and  obtains  an  order  of  sale,  and  re- 
turns the  sale  bill,  will  be  held  liable  for  the  amount  of  such  sale, 
though  his  co-executor  assisted  him  in  the  sale,  and  received  part 
of  the  money.  2  Hill's  Ch.  R.  295— Cook  vs.  Cook,  Oct.  term, 
N.Jersey,  1824. 

Administrators  or  executors  on  joint  bond,  are  liable  to  indem- 
nify the  sureties  on  default  of  one  of  them.    2  Connt.  536. 


*The  bond  of  an  executor,  administrator,  &c.  must  be  recorded,  and  a  certified 
copy  shall  be  evidence.    How.  &  H.  sec.  37,  p.  395,  396. 


240  BOND  OF  EXEC'rS.  AND  ADM'rS.       [cH.  XXXIV. 

§  3.  An  executor's  or  administrator's  bond  binds  the  sureties, 
For  a  faithful  performance  of  the  legal  obligation  of  the  executor 
and  no  more — i.  e.  to  a  faithful  administration  of  the  goods  and 
chattels  of  the  testator  or  intestate,  and  payment  and  distribution  of 
all  legacies.  But  as  executors  and  administrators  have  no  concern 
with  devises,  the  sureties  incur  no  responsibility  as  respects  them. 
7  Dana,  10.  Where  the  condition  of  the  bond  was,  "faithfully  to 
administer,"  it  was  held,  not  to  bind  the  sureties  for  distribution. 
7  Dana,  417.  And  sureties  are  not  liable  for  a  slave  which  did 
not  pass  by  the  will,  but  was  sold  by  the  executor,  unless  the  con- 
dition of  the  bond  is  for  distribution  as  well  as  for  legacies.   lb. 

The  sureties  of  an  executor  or  administrator  are  not  liable  on 
the  bond  of  their  principal,  for  the  proceeds  of  real  estate  of  the 
testator  or  intestate,  sold  by  an  order  of  the  Probate  court-— 17  S. 

6  R.  392 — because  the  bond  refers  only  to  chattels.  lb.  (But  in 
Pennsylvania,  the  statute  authorises  the  judge  in  such  case,  to 
take  a  bond  with  separate  sureties  for  the  faithful  performance  of 
a  power  to  sell.  76.)— See  also  11  S.  &  R.  441;  8  Watts,  214;  5 
Watts,  157. 

A  bond  given  by  decedent  as  Commissioner  in  Chancery  to  sell 
land  of  heirs,  imposes  no  duty  on  his  representatives  (administra- 
tors,) nor  do  the  decrees  in  the  case.  If  there  was  no  breach  by 
him  during  life,  there  could  be  none  by  them  after  his  death.  7 
Dana,  303. 

Where  a  will  is  produced  after  a  grant  of  administration,  the 
sureties  on  the  bond  of  the  administrator,  are  liable  to  those  enti- 
tled to  legacies  under  the  will.    9  Dana,  90. 

§  4.  Sureties  are  not  liable  for  funds  received  by  the  executor, 
as  agent  or  trustee  for  the  legatee,  though  charged  in  the  account. 

7  Dana,  10. 

By  act  of  Mississippi,  no  executor's  or  administrator's  sureties 
shall  be  rendered  liable,  beyond  the  assets  of  the  testator  or  intes- 
tate, by  reason  of  any  omission  or  mistake  in  pleading — or  false 
pleading  of  such  administrator.     How.  &  H.  sec.  38,  p.  396. 

A  bond  binds  the  sureties  for  every  thing  which  came  to  the 
hands  of  their  principal,  in  which  the  intestate  had  an  interest-— 

8  Ohio  R.  220 — but  only  such  as  were  his  at  the  time  of  his  death. 
11S.&R.441. 


CH.XXXIV.]        BOND  OF  EXEC'rS.  AND  AUM'rS.  241 

ti'  §  5,  But  the  bond  of  the  executor  or  administrator  only  covers 
assets  received  here.     3  Iredell,  152. 

Bonds  by  executors  in  this  State,  who  have  taken  out  letters, 
with  the  will  annexed,  in  another  State,  subjects  sureties  only  to 
the  liabilities  of  a  local  administrator,  being  limited  to  assets  re- 
ceived by  him  in  this  State.    7  Dana,  351. 

BOND BREACH  OF. 

§  6.  Creditors  may  assign  non-payment  of  debts  and  legacies 
as  a  breach  of  the  bond  of  an  executor  or  administrator — 1  Dev. 
475 — And  the  criterion  of  damages  is  the  amount  of  the  judg- 
ment against  the  executor  or  administrator. — lb.  &  5  Connt.  373. 
In  case  of  insolvent  estates,  the  rule  of  damages  will  be  the  av- 
erage to  which  each  is  entitled — Ibid. — and  one  breach  is  suffi- 
cient.   9  S.  &  R.  63. 

b'  Where  an  administrator  was  warranted,  and  judgment  render- 
ed against  him  for  debt  and  costs,  on  plea  of  retainer,  fully  ad- 
ministered, &c. — Held,  that  the  justice  could  try  the  cause  on 
these  pleas;  and  having  negatived  them,  their  judgment  was  ab- 
solute, and  non-payment  thereof  assignable  as  a  breach  of  the 
bond  of  the^administrator.     3  Dev.  91. 

But  where  a  judgment  is  void,  a  non-payment  of  it,  cannot  be 
alleged  as  a  breach  by  which  to  render  the  administrator  and  his 
sureties  liable. — 1  Green's  Ch.  R.  133.  Not  citing  the  adminis- 
trators, is  a  good  equitable  defence  to  a  scire  facias  on  a  judgment 
for  penalty,  but  not  in  a  suit  on  the  bond  itself.    9  S.  &  R.  63. 

Where  the  condition  of  the  bond  was  that  the  administrator 
should  exhibit  an  inventory  to  court,  by  14th  June,  1821,  and  he 
did  not  exhibit  it  till  the  13th  August  next  succeeding, — held,  this 
was  a  breach  of  the  condition,  though  appraizers  were  not  ap- 
pointed till  the  9th  day  of  July,  1821;  and  the  inventory,  when 
presented,  was  accepted  by  the  court— -5  Connt.  373;  8  S.  &  R. 
128 — Such  inventory  need  not  be  final.    Ibid. 

So,  where  the  condition  was  he  should  render  an  account  by 
the  14th  November,  1821,  and  he  did  not  till  May,  1823— held, 
this  was  a  breach,  though  the  estate  was  represented  insolvent; 
and  commissioners  appointed  in  August,  1821,  who  reported  in 
March,  1822,  and  an  order  for  sale  of  real  estate  was  passed  Nov. 
31 


242  BOND  OF  exec'rs.  and  adm'rs.     [ch.  XXXIV. 

11,  1822 — and  the  administrator's  acceptance  of  his  doings  was 
under  this  order,  was  made  and  accepted  January  13th,  1823 — - 
and  though  the  account  when  rendered  was  accepted  by  the  court. 
6  Count.  373. 

Where  the  condition  of  a  bond  is  not  strictly  impossible  at  the 
time  of  executing  it,  nor  afterwards  made  so  by  act  of  God,  of  the 
law,  or  the  obligee,  the  omission  to  perform  it  is  an  absolute  and 
unexplainable  breach.     Ibid. 

Where  the  same  person  is  administrator  and  guardian  of  next 
of  kin,  and  retains  an  account  of  his  administration,  and  acknowl- 
edges a  balance  due  to  his  ward,  this  is  not  a  fulfilment  of  his  ad- 
ministration bond,  unless  money  is  identified  and  retained  by 
guardian  to  pay  his  ward.    6  Yerger,  434. 

BOND"--ACTION  ON. 

§  7.  An  action  can  be  maintained  on  an  administration  bond 
against  the  sureties,  before  judgment  against  the  administrators. 
It  lies  against  the  sureties  as  soon  as  the  administrator  forfeits  his 
bond,  and  any  person  is  "thereby  injured."  (By  statute  of  N.  C.) 
2  Murphy,  22. 

The  heir  cannot  sue  on  an  administration  bond  till  the  admin- 
istrator has  settled  his  accounts,  or  the  plaintiff's  right  is  estab- 
lished by  judgment.    3  Ohio  R.  226. 

In  assigning  a  breach,  in  a  suit  on  an  administrator's  bond,  it  is 
not  necessary,  in  order  to  establish  a  devastavit,  to  state  the  kind 
and  quantity  of  goods  and  chattels  which  came  to  the  hands  of  the 
administrator.  It  is  sufficient  to  aver  that  goods  and  chattels,  suf- 
ficient to  pay  the  debt,  came  into  his  hands,  and  that  he  wasted 
and  converted  the  same  to  his  own  use.  6  How.  93,  But  even  this 
is  unnecessary,  where  the  value  of  the  estate  is  stated  in  the 
breach.    Ibid. 

One  administrator  cannot  maintain  an  action  against  the  rep- 
resentative of  a  deceased  co-administrator  and  co-obligor,  on  the 
administration  bond.    4  Watts,  384. 

§  8.  The  act  of  Mississippi,  provides  that  "such  bond  shall  be 
payable  to  the  Judge  of  Probate  of  the  proper  county,  and  his 
successor  in  office,  and  shall  not  become  void  on  the  first  recov- 
ery, but  niay  be  put  in  suit  and  prosecuted  from  time  to  time  by 


CH.  XXXIV.]        BOND  OF  EXEC^RS  AND  ADM'rS.  243 

and  at  the  cost  of  any  party  injured  by  a  breach  thereof,  till  the 
whole  penalty  be  recovered  thereon ;  and  such  bond  shall  be  re- 
corded in  the  office  of  the  Register  of  the  Orphan's  court,  (now 
Clerk  of  Probates,)  and  a  certified  copy  thereof,  under  the  seal  of 
said  court,  shall  be  received  as  evidence  in  any  court  of  law  and 
equity  in  this  State.     How.  &  H.  sec.  20,  p.  391. 

And  "  if  a  bond  of  executor  or  administrator  be  forfeited,  the 
Judge  of  Probate  may  cause  the  same  to  be  prosecuted,  at  the  re- 
quest of  any  party  grieved  by  such  forfeiture,  and  the  money  re- 
covered shall  be  applied  to  make  good  the  damages  sustained,  in 
such  manner  as  the  court  of  Probates  shall  direct  in  their  decree." 
How.  &  H.  sec.  39,  p.  396. 

And  "executors  or  adminstrators  are  suable  for  devastavit,  for 
debt  on  bond,  jointly  and  severally,  or  by  scire  facias  against  the 
principal  and  sureties  in  bond,  till  the  whole  penalty  is  recover- 
ed— and  then  by  scire  facias  against  the  executor  or  administrator." 
How.  &  H.  sec.  Ill,  p.  417.  By  act  of  1830,  "  any  person  inter- 
ested in  the  estate  of  any  deceased  person,  as  creditor  or  other- 
wise, may  sue,  on  such  bond,  the  executors  or  administrators  and 
their  sureties,  jointly,  and  in  no  case  shall  a  separate  suit  be  ne- 
cessary against  any  executor  or  administrator,  to  establish  a  devas- 
tavit, prior  to  the  liability  of  the  sureties.    How.&  H.  p. 419,  420. 

The  pleadings  must  show  that  the  suit  is  brought  for  the  use 
of  another,  and  the  character  of  his  interest  in  the  proceeding. — 
4  How.  680. 

The  remedy  against  an  administrator,  for  past  acts  of  mal-ad- 
ministration,  is  on  his  bond.  But  where  injury  to  the  estate  is 
reasonably  apprehended,  the  Court  of  Probate  may  remove  the 
administrator  to  prevent  it.    2  How.  905. 

An  execution  against  an  executor  or  administrator  may  be  awar- 
ded, de  bonis  propriis,  on  a  scire  facias,  sued  out  on  a  judgment 
previously  rendered  in  proving  a  devastavit.  But  even  in  case 
of  there  being  no  defence  against  the  suggestions  of  the  sci.fa. 
judgment  fined  cannot  be  rendered  unless  the  devastavit  is  proved. 
1HOW.271--8S.&R.  128. 

And  in  a  suit  on  an  administrator's  bond  by  a  distributee  of  an 
estate,  on  which  the  intestate  of  the  defendant  has  administered, 
the  breach  must  show  waste  by  such  deceased  administrators,  and 


244  BOND  OF  exec'rs.  and  adm'rs.      [ch.  XXXIV^ 

a  devastavit  regularly  established  by  proof  and  judgment,  before 
a  remedy  can  be  bad  of  the  representatives  of  such  deceased  ad- 
ministrator.   6  How.  93. 

§  9.  Where  a  statutory  bond  contains  a  condition  good  in  part, 
and  bad  in  part,  and  the  statute  does  not  declare  such  bond  void, 
the  common  law  will  prevail,  and  recovery  may  be  had  for  breach 
of  what  is  good.  Gilpin,  155,  182;  17  Wend.  67:  13  Connt.  75; 
15ib.  152;  2  Maule  &  Sel.  363;  4  ibid.;  7Bingh.423;  3Dev.86, 
297,  384;  4  ib.  268. 

As  where  A.  &  B.  gave  bond  to  the  Court  of  Probates,  the  con- 
dition of  which,  (after  counting  on  the  appointment  of  A.  and  B. 
as  trustees  of  all  the  goods  and  chattels  of  certain  insolvent  debt- 
ors, assigned  for  the  benefit  of  all  their  creditors  by  deed  of  April, 
1837,)  required  A.  and  B.  to  make  a  true  and  perfect  inventory 
of  all  the  goods  and  chattels  of  such  insolvent  debtor,  which  had 
come,  or  should  thereafter  come  into  their  possession,  or  possession 
of  some  other  person  for  them — should  well  and  truly  administer 
such  goods  according  to  law,  and  render  a  just  and  true  account 
of  trusteeship  in  a  limited  time,  it  was  held,  that — 

1st.  This  bond  taken  altogether  related  only  to  goods  assigned 
by  deed  referred  to ;  but  if  otherwise — 

2dly.  As  the  bond  did  not  embrace  the  terms  prescribed  by 
statute,  it  was  valid  as  to  the  estate  assigned,  and  void  only  as  to 
the  excess.  15  Connt.  152— see  1  Peters'  C.  C.  R.  47,  &  4  W.  C.  C. 
R.  620--Gilp.  155. 

§  10.  But,  if  a  bond  be  taken  under  a  statute  declaring  that  it 
shall  be  in  a  prescribed  form  and  no  other,  a  recovery  cannot  be 
had  if  it  varies  from  the  statute,  or  if  the  condition  contains  more 
than  the  statute  requires.     Gilpin,  155. 

A  variance  between  a  statutory  bond  and  the  requisitions  of  the 
statute  is  fatal  to  it,  only  when  the  condition  would  impose  a 
greater  burden  on  him  than  the  law  allows.  1  Watts  &  Serg. 
263. 

§  11.  The  party  who  first  sues  and  obtains  judgment,  on  an  of- 
ficial bond,  is  entitled  to  the  whole  penalty,  if  the  demand  a- 
mounts  to  so  much,  in  exclusion  of  every  other  claimant.— -3  Dall. 
501 ;  4  ib.  106— -If  claim  is  less  than  judgment,  a»sci.  fa.  may  issue 
in  favor  of  other  legatees,  &c.— -1  Watts,  374.     So,  if  the  party, 


CH.  XXXV.]     ex'rs.  and  adm's.  revoc.  of  let'rs.  245 

first  suing,  is  prevented  from  obtaining  judgment  by  an  order  of 
the  court  to  stay  proceedings,  on  the  defendant's  paying  into  court 
the  penalty  of  the  bond. — 1  Binn.  370.  Where  there  are  subse- 
quent suitors  on  an  official  bond,  to  the  same  term,  they  are  to  be 
considered  as  applying  at  the  same  time,  and  the  surplus  must  be 
distributed  pro  rata. — Ibid.  But,  if  instead  of  suing,  any  apply 
to  court  to  come  in  under  first  suit,  priority  of  application  will  en- 
title to  priority  of  payment.    Ibid. 


CHAPTER  XXXV. 

executor's  and  administrator's  revocation  of  letters. 

§  1.  If  an  executor  residing  out  of  the  State  (or  administrator,) 
when  taking  the  trust,  or  afterwards  removing  out  of  the  State, 
shall  refuse  or  neglect,  after  due  notice  from  the  Orphan's  court, 
to  render  his  accounts  and  make  settlement  of  such  estate  with 
creditors,  legatees  or  heirs,  or  their  legal  representatives — or,  if 
any  executor  or  administrator  shall  become  insane,  or  otherwise 
incapable  of,  or  evidently  unsuitable  to  discharge  the  trust  repos- 
ed in  him,  the  court  of  Probates  may  grant  letters  of  administra- 
tion, cum  testamento  annexo,  or  otherwise,  as  the  case  may  re- 
quire, to  such  person  as  may  be  entitled  to  the  same,  and  as  the 
court  shall  deem  meet.     How.  &  H.  sec.  44,  p.  398. 

§  2.  And,  if  letters  have  been  granted  without  good  security, 
or  if  the  security  afterwards  become  insufficient,  the  said  court,  on 
application  of  any  person  interested  in  the  distribution  of  the  said 
estate,  may  require  other  and  sufficient  security,  and  in  default 
thereof  may  revoke  such  letters  and  grant  administration  de  bonis 
non.  But  all  acts  of  such  executor  or  administrator,  so  removed, 
done  according  to  law,  shall  be  valid,  and  all  suits,  &c.  shall  be 
conducted  as  pjescribed  by  55th  section  of  this  act.  How.  &  H. 
sec.  45,  p.  398.     See  sec.  7,  j^ost. 


246  ex'rs.  and  adm's.  revoc.  of  let'rs.     [ch.  xxrv, 

§  3.  When  sureties  conceive  themselves  in  danger,  (or  their 
representatives,)  and  petition  the  court  for  security,  the  court  shall 
order  either  counter  security,  or  in  default  thereof,  a  new  bond 
with  good  security ;  and  such  bond  shall  have  relation  back  to 
the  time  of  granting  letters  testamentary,  or  of  administration, 
and  be  as  effectual  as  if  then  executed. — How.&  H.  sec, 46,  p.  398. 
On  execution  of  such  bond,  such  sureties  shall  be  discharged 
from  their  bond,  except  only  as  to  such  actions  as  .may  then  be 
pending  against  them  or  their  representatives,  &c.  How.  &  H. 
sec.  47,  p.  399.  If  the  executor  or  administrator  fail  to  comply, 
the  court  may  revoke  and  annul  such  letters  in  part  or  in  whole, 
and  appoint  an  administrator  (in  like  manner  as  aforesaid,)  de  bo- 
nis non,  or  place  the  estate  in  the  hands  of  the  sureties,  or  some 
other  person,  or  make  other  order,  essential  to  the  protection  of 
sureties,  having  due  regard  to  the  rights  and  interests  of  creditors, 
legatees  or  distributees. — How.  &  H.  sec.  48,  p.  389.  Such  sure- 
ty or  other  person  shall  have  power  to  receive  and  demand  debts 
and  other  personal  property,  due  or  belonging  to  the  estate,  to  pay 
debts,  and  may  sue  and  be  sued  as  executor  or  administrator. — 
How.  &  H.  sec.  49,  p.  399 — See  sec.  9. 

§  4.  If  an  executor,  administrator,  or  collector  fail,  within  six 
months  after  the  date  of  his  letters,  to  exhibit  inventory,  or  at  such 
other  time  as  the  court  shall  appoint — a  summons,  returnable 
within  not  less  than  eight,  or  more  than  thirty  days,  may  issue  a- 
gainst  such  administrator,  executor  or  collector,  to  show  cause,  &c. 
— and  if  return  be  "summoned,"  or  on  two  citations,  "non  est" 
by  the  sheriff  of  the  county,  where  the  party  resided  at  the  time 
of  obtaining  letters,  and  he  does  not  appear  at  such  return,  or  ap- 
pearing does  not  shew  cause,  &c.,  said  court  may  revoke,  &c. 
and  grant  letters  of  administration,  in  same  manner  as  if  such  ex- 
ecutor had  not  been  named  in  the  will,  or  as  if  such  executor 
were  not  in  existence.  And  the  power  of  such  executor,  &c.  shall 
cease,  and  he  shall  deliver  up  on  demand,  to  his  successor,  all 
property,  &c.  or  be  suable  therefor, &c.    How.&H.  sec. 64,  p.403. 

If  one  of  two  executors  fail  as  aforesaid,  his  power  shall  c.ease, 
unless,  within  two  months,  after  the  return  of  the  citation,  he  as- 
sign to  the  court  a  reasonable  excuse,  &c.  How.  &  H.  sec.  65, 
p.  403. 


CH.  XXXV.]     ex'rs.  and  adm's.  revoc.  of  let'rs.  247 

§  6.  When  an  executor  or  administrator,  &c.  summoned  to  ac- 
count, shall  fail,  the  court  may  attach  for  disobedience,  in  like 
manner  as  the  Circuit  court,  &c.;  and  on  failure  to  account,  may 
revoke  letters  and  grant  administration  to  the  person  entitled 
thereto,  or  make  such  other  order  as  the  case  may  require,  having 
regard  to  the  preservation  of  the  estate,  &c.  How.  &  H.  sec.  74, 
p,407, 

§  6,  On  application  of  any  person  appointed  executor  or  ad- 
ministrator, the  court  may  permit  a  surrender  of  letters,  by  sixty 
days  notice  by  advertisement,  at  the  door  of  the  court-house,  and 
publishing  the  same  in  some  newspaper  of  the  State,  for  such  time 
as  the  court  may  order,  and  settling  with  the  court,  so  far  as  the 
administration  has  extended ;  and  the  court  shall  make  such  al- 
lowance as  may  be  right,  &c.  (unless  it  appear  that  injury  would 
result  to  persons  interested,)  and  re-grant  letters  to  such  persons 
as  may  be  entitled.    How.  &  H.  sec.  106,  p.  416 — See  sec.  10. 

§  7.  At  common  law,  the  Ordinary  could  revoke  administration 
at  pleasure,  and  there  is  nothing  in  the  act  of  1789,  (S.  Carolina) 
to  divest  him  of  that  power  in  relation  to  strangers,  although  the 
temporal  courts  may  control  him  in  the  exercise  of  it.  2  Hill's 
So.  Car.  R.  347. 

The  record  of  a  county  court,  setting  aside  an  executor  and  ap- 
pointing an  administrator,  should  show  the  reasons  for  so  doing. 
7  J.  J.  Marsh,  621. 

The  /emoval  of  an  executor  is  a  judicial  act  subject  to  revision 
by  the  Supreme  court. — 3  B.  Monroe,  1.  But  that  court  can  do 
no  more  at  the  instance  of  the  administrator  than  revoke  the  or- 
der of  removal.    Ibid. 

The  court  has  power  to  revoke  letters  of  administration,  during 
Uie  same  term  at  which  they  are  granted,  and  grant  other  letters. 
I  Dever.  352. 

If  administration  be  revoked  and  a  will  proved,  the  executor 
cannot  maintain  trover  against  the  administrator,  nor  one  claim- 
ing under  him  for  goods  of  the  testator,  in  which  such  adminis- 
trator had  regularly  obtained  an  individual  title  while  administra- 
tor. Whether  the  administrator  properly  applied  the  value  of 
goods,  cannot  be  toied  in  this  form  of  action.  1  Bailey's  So.  Car. 
R.  221. 


248  ex'rs.  and  adm's.  revoc.  op  let'rs.     [ch.  xxxv. 

Where  the  administrator  at  the  time  of  an  application  for  his 
removal,  possessed  the  same  capacity  as  he  did  when  appointed, 
the  court  refused  to  remove  him  for  want  of  capacity,  although  his 
appointment  might  have  been  injudicious.    2  How.  905. 

A  motion  to  revoke  letters  of  administration  on  the  ground  that 
the  administrator  is  not  next  of  kin,  can  only  be  made  at  the  in- 
stance of  the  next  of  kin.     1  How.  322. 

§  8.  All  acts  done  in  the  due  and  legal  course  of  administra- 
tion, are  valid  and  binding  on  all  interested,  although  the  letters 
of  administration  be  afterwards  revoked.  1  Bailey,  221;  4  Ham. 
138. 

§  9.  Sureties  on  an  administration  bond,  who  have  petitioned 
the  court  of  Probates  for  relief,  after  counter  security  has  been  giv- 
en and  a  new  bond  executed,  are  absolutely  discharged  from  all 
liability,  and  they  may  plead  the  new  bond  in  bar  of  any  action, 
subsequently  brought  on  the  original  bond.    3  Sm.  &  M.  234. 

A  county  court  (court  of  Probate  here,)  has  power  to  take  a 
new  bond  for  the  benefit  of  former  sureties  under  the  act,  though 
no  petition  be  filed  or  verified  on  oath,  and  no  summons  issued 
against  the  executor  or  administrator — the  latter  being  present  and 
not  requiring  these  forms  to  be  observed.    3  Iredell,  342. 

§  10.  In  Tennessee,  the  county  court  can  for  good  cause  shown, 
compel  the  administrator  to  surrender,  and  appoint  another.  3 
Yerger,  375. 

An  executor  cannot  by  a  surrender  of  his  authority  as  such,  a- 
void  the  rendition  of  judgments  or  decrees  against  him,  in  cases 
before  instituted,  for  assets  un-administered  on  at  the  time  of  his 
surrender.    5  Stew.  &  Port.  181. 

An  executor  after  probate  of  the  will,  accepting  the  trust  and 
giving  bond  for  its  faithful  performance,  cannot  renounce  the 
trust. — 12  Mass.  358. — By  statute  of  Mississippi,  he  may,  if  the 
court  so  direct,  unless  injurious  to  the  interests  of  the  estate. — 
See  sec.  6,  ariit. 


CM.  XXXV.]       SPECIAL  ADMINISTRATION AD  COL.  249 

'*y  CHAPTER  XXXV. 

SPECIAL    ADMINISTRATION. 

Adm'r.  ad  colligendum. 

§  1.  During  any  contest  about  a  will,  or  during  the  infancy,  or 
in  the  absence  of  an  executor  or  executrix,  or  until  a  will,  which 
may  have  once  existed  and  is  destroyed,  shall  be  established,  the 
court  may  appoint  any  person  or  persons,  to  colled  and  preservi 
the  estate  of  any  decedent  until  probate  of  his  will,  or  durantt 
minore  alate,  or  until  administration  of  his  estate  be  granted, 
taking  bond  and  security  for  collecting  the  estate,  making  an  in- 
ventory thereof,  and  safe  keeping  and  delivering  up  the  same 
when  required,  to  the  executor  or  administrator.  How.  &  H. 
sec.  24,  p.  392. 

(For  form  of  letters  so  granted,  and  the  oath  and  bond  requi^ 
€d  in  such  case,  see  Ibid,) 

§  2.  Every  collector  so  appointed  shall  have  power  to  collect 
the  goods,  &c.,  and  to  secure  the  same  at  such  reasonable  and 
necessary  expense,  as  shall  be  allowed  by  the  court ;  and  the 
court  may  order,  immediately  after  appraisement,  the  sale  of  such 
as  shall  be  perishable,  or  not  to  be  preserved,  and  the  adminis- 
trator must  account  for  the  same ; — and  for  the  whole  trouble  in- 
curred, the  court  may  allow  a  commission  on  the  amount  of  debts, 
and  property  actually  collected,  and  afterwards  delivered  to  an 
executor  or  administrator,  as  to  the  court  shall  seem  just — not 
more  than  jive,  or  on  the  whole  inventory  not  more  than  thrtt 
per  cent.    How.  &  H.  sec.  26,  p.  393, 

He  shall  have  power  to  sue  for  debts  to  decedent,  and  release 
the  same  on  payment  thereof;  and  suit  shall  not  abate  by  the  re- 
vocation of  his  letters,  but  shall  be  prosecuted  to  final  judgment, 
by  the  executor  or  administrator  to  whom  letters  may  be  granted. 
Ibid.  sec.  27,  p.  393. 

7/>§  3.  On  granting  letters  testamentary  or  of  administration,  his 
powers  shall  cease,  and  he  shall  deliver  on  demand,  all  the  piop- 
erty  and  money  of  the  deceased,  (except  as  before  excepted,)  jio 
32 


250  SPECIAL  ADMINISTRATION AD  COL.       [CH.  XXXV, 

the  persons  obtaining  letters,  and  if  he  evade,  refuse,  or  neglect 
to  deliver,  to  such  demand,  made  at  a  reasonable  time  and  place, 
the  court  may  attach  and  impose  a  fine  not  exceeding  10  per  cent, 
on  the  amount  of  property,  or  his  bond  may  be  sued  on  by  the 
person  or  persons  to  whom  letters  testamentary  or  of  administra- 
tion may  be  granted.     Ibid.  sec.  29,  p.  393. 

§  4.  Letters  of  administration  in  chief,  granted  pendente  lite, 
are  void — and  exceeding  the  power  of  the  court,  are  not  good  e- 
ven  as  letters  pendente  lite. — 3  Iredell,  557.  But,  in  a  case  where 
the  defendant  to  an  action  had  obtained  letters  testamentary,  pend- 
ing a  controversy  about  the  will,  and  taken  possession  of  the  es- 
tate and  administered  it  till  appointment  of  the  administrator 
pendente  lite,  to  whom  he  then  delivered  it — the  will  was  an- 
nulled— Held,  notwithstanding  that  the  executors  having  receiv- 
ed letters  after  a  due  probate  of  the  will,  might  perform  every 
act  proper  for*  an  executor  to  perform,  notwithstanding  the  lis 
pendens  about  the  will,  and  was  entitled  to  the  expense  incurred 
in  litigation,  and  to  commissioners  while  managing  the  estate. 
There  is  no  ground  for  considering  him  executor  de  son  tort. — 3 
Wash.  C.  C.  R.  122— -see  also  8  Cranch.  9 — (See  next  chap.  sec.  1.) 

§  5.  Until  the  probate  of  a  will  and  letters  testamentary  are 
obtained,  there  seems  to  be  an  absolute  necessity  for  the  appoint- 
ment of  some  person  to  take  charge  of  the  estate  till  then,  because 
the  executor  till  probate  cannot  obtain  any  judgment,   8  Cranch.  9. 

An  administrator  pendente  lite,  or  ad  colligendum,  has  no  pow- 
er to  sell  any  except  perishable  effects.     3  Iredell,  549.* 

Such  administrator  is  merely  an  officer  of  the  court  to  sue  for 
debts  of  the  deceased  and  hold  his  effects,  till  lis  pendens,  i.  e. 
the  controversy  terminates.  He  has  no  power  to  distribute  the 
estate.     3  Humph.  652. 

An  administrator  pendente  lite  is  not  responsible  for  interest, 
if  they  do  not  use  the  money  in  their  hands — Otherwise,  if  they 
purchase  property  and  enjoy  it.     16  S.  &  R.  416. 


•Our  statute  authorizes  him  to  sell  goods  that  are  "perishable,  or  not  to  be  pre- 
served.''^ These  last  words,  it  is  presumed,  are  only  intended  as  explanatory  of  the 
word  "perishable,"  and  are  not  intended  to  confer  power  on  the  administrator  to 
sell  any  goods  not  perishable.  They  mean  such  as  "cannot  be  preserved,"  and 
"or"  must  be  construed  "and," 


CH.  XXXVl.]      ADMINISTRATOR CUM  TEST'm.  ANEX.  261 

CHAPTER  XXXVL 
Administrator — Cum  testamento  anntxo. 

§  1.  By  act  of  Mississippi,  "If  letters  testamentary,  of  admin- 
istration or  guardianship,  be  granted  by  the  Orphan's  court,  and 
the  party  contesting  the  same,  shall  appeal  torthe  court  of  Chan- 
cery or  Supreme  court,  according  to  the  provisions,  &c.  the  court 
shall  appoint  a  person  to  act  as  administrator  with  the  will  an- 
nexed, (if  there  be  no  executor  legally  qualified,  under  the  will 
of  the  testator,  or  administrator  of  the  estate  of  an  intestate,)  who 
shall  take  charge  of  the  estate  till  a  final  decision ;  and  such  ad- 
ministrator shall  give  the  like  security,  take  the  oath  and  perform 
the  duties  which  are  required  of  an  executor  or  administrator,  &c.j 
and,  on  a  final  decree  certified  to  the  court  below,  he  shall  sur- 
render all  the  estate,  papers,  &c.  to  the  person  in  whose  favor  such 
decree  is,  after  the  latter  shall  have  complied  with  the  requisitions 
of  this  act,  and  obtained  an  order  of  the  Orphan's  court  for  that 
purpose — in  which  case,  the  powers  and  duties  of  the  special  ad- 
ministrator shall  cease,  &c. — How.  &  H,  sec.  1,  p.  385.  So,  if  the 
executor  renounce,  or  being  required  to  give  security,  fail,  &c. — 
(See  ardt  sections  1,  2,  3,  4,  5,  6,  chap.  35) — and  see  How.&  H. 
sec.  1-8,  p.  389. 

§  2.  A  widow  being  named  executrix,  may  refuse  as  such,  and 
yet  may  act  as  administratrix  cum  test'o.  ann'o. — and  in  the  latter 
capacity,  conjointly  with  another.  The  acceptance  of  the  ap- 
pointment would  not  make  her  executrix  in  fact,  but  would  rather 
be  evidence  of  her  renunciation ;  nor  would  the  appointment  of 
a  co-administrator  be  irregular  or  voiH.  6  Dana,  169. 
.  Under  the  foregoing  statute,  if  an  executor  has  qualified,  in 
case  of  a  will,  or  an  administrator  in  case  of  intestacy,  an  admin- 
istrator cum  test'o.  ann'o.  cannot  be  appointed. 

Where  a  testator  appointed  three  executors,  with  power  to  dis- 
tribute his  property,  and  they  all  died  indebted  to  the  testator, 
it  was  hdd,  that  the  Orphan's  court  might  appoint  the  son  of  the 


252  ADMINISTRATOR CUM  TEST^M.  ANEX.       [CH.  XXXVI. 

surviving  executor  administrator  with  the  mil  annexed,  of  such 
estate — there  being  no  claim  made  by  the  next  of  kin,  nor  by  the 
State,  nor  by  the  creditors.    9  S.  &  R.  186. 

§  3.  In  Mississippi,  "all  such  estate,  real  and  personal,  as  is  not 
devised  or  bequeathed  in  the  last  will  and  testament  of  any  per- 
son, shall  be  distributed  in  the  same  manner  as  the  estate  of  an 
intestate,  and  the  executor  or  administrator,  &c.  with  will  annex- 
ed, (as  the  case  may  be,)  shall  administer  the  same  accordingly. 
How.  &  H.  sec.  29,  p.  393. 

An  admistrator  cum  test'o.  annexo,  may  exercise  all  the  powers 
conferred  by  will  on  the  executor.     1  Dana,  306. 

The  duties  of  an  executor,  resulting  from  the  nature  of  his  office, 
where  the  authority  is  not  necessarily  connected  with  a  personal 
trust,  and  confidence  reposed  in  the  executor  by  the  testator,  de- 
volve on  the  administrator  cum  test'o.  annexo.  4  Mass.  634 — see 
1  A.  K.  Marsh.  88. 

Where  lands  are  directed  by  a  will  to  be  sold  by  the  executors, 
and  they  renounce,  the  administrator  with  the  will  annexed  can- 
not sell.    Coxe,  432. 

But  it  seems,  a  power  to  sell  created  by  the  will,  invests  the  ad- 
ministrator with  the  will  annexed  with  power  to  transfer  all  title 
which  the  testator  had,  and  a  conveyance  by  him  (or  the  executor) 
will  divest  the  heirs  of  all  title  by  descent.    9  Dana,  102. 

But  this  rule  does  not  apply  to  such  administrator  in  another 
State,  who  cannot  under  such  power,  sell  land  in  this  State,  with- 
out also  qualifying  here.    Ihid.  306,  316,  327. 

An  administrator  with  the  will  annexed  having  authority  to 
sell  land  for  payment  of  debts,  may  move  to  quash  a  sale  of  it, 
made  under  an  execution  vs,  the  heirs,  unless  the  Chancellor 
orders  the  sale.    3  Dana,  188. 

Where  goods  were  seized  in  the  hands  of  an  administrator 
pendente  lite,  and  sold  under  execution  against  the  administrator 
for  his  personal  debt,  the  administrator  cum  testo.  anno,  may  have 
trespass  or  trover  against  the  sheriff,  for  such  seizure  and  sale — 
3  Iredell,  549 — and  the  sheriff  could  not  deduct  from  the  dama- 
ges the  surplus  of  proceeds  paid  to  the  administrator  pendente  lUt, 
Ibid. 


CH.  XXXVll.]       ADMINISTRATOR — DE  BONIS  NON.     •  233 

An  administrator  cum  test'o.  ann'o.  who  sues  as  such  during 
the  absence  of  the  executor,  must  aver  such  absence  at  the  time  of 
bringing  suit.    An  omission  is  fatal.    3  S.  &  R.  44. 

§  4.  If  an  administrator  with  will  annexed,  be  removed  to  give 
place  to  executors,  (as  prescribed  in  How.  &  H.  sec.  18,  p.  390) 
he  shall  without  delay  exhibit  his  or  her  accounts,  and  deliver,  on 
demand,  all  goods,  chattels,  and  personal  estate — and  on  failure, 
his  bond  shall  be  put  in  suit,  &c.    How.  &  H.  sec.  19,  p.  390. 


>  CHAPTER  XXXVll. 

».■  • 

Administrator-— (ie  ionis  won. 

§  1.  By  act  of  Mississippi,  "In  case  any  executor  shall  die  be- 
fore the  estate  be  fully  administered,  letters  of  administration  de 
bonis  non  shall  be  granted  to  the  person  entitled,  agreeably  to  the 
rules  hereinbefore  laid  down ;  and  the  proceedings  shall  be  the 
same  in  all  respects  as  if  administration  had  been  originally  grant- 
ed. How.  &  H.  sec.  40,  p.  397,  and  sections  45,  46,  47,  pages 
398,  399. 

In  Massachusetts,  the  next  of  kin  has  no  right  to  claim  letters 
of  administration  de  bonis  non,  but  the  court  may  grant  it  to  a 
suitable  person. — 3  Metcalf,  187.  (In  Mississippi,  the  statute 
makes  it  otherwise.) 

Where  an  executor  has  been  removed  from  office,  and  an  ad- 
ministrator de  bonis  non  been  substituted,  another  person,  hav- 
ing equal  claim,  cannot  at  a  subsequent  term  obtain  administra- 
tion— the  power  of  the  court  over  the  subject  having  ceased. — 
2  Virg.  C.  230. 


254-  ADMINISTRATOR DE  BONIS  NON.       [CH.  XXXVU. 

"  §  2.  If  all  the  original  executors  or  administrators  are  not  dead, 
(or  removed,)  a  grant  of  administration  dt  bonis  non  is  void. — 6 
Yerg.  167. — And  a  compromise  made  by  an  administrator  so  ap- 
pointed is  void.— -/6wi.  A  grant  of  administration  is  an  entire 
thing,  and  if  one  administrator  dies,  it  survives  to  the  rest. — 6 
Yerg.  167. 

Administration  dt  bonis  non  is  to  be  granted  where  the  estate 
is  not  fully  settled,  and  the  administrator  has  become  a  bankrupt 
and  absconded— -1  Root,  425 — Or  where  there  are  debts  unsatis- 
fied, notwithstanding  the  estate  is  all  distributed. — 1  Root,  174. 
(But  under  the  statute  of  Massachusetts,  of  1817,  authorizing  the 
grant  of  administration  de  bonis  non,  "  where  there  are  debts  due 
from  the  person  unpaid,"  it  was  held,  that  a  legacy  was  not  a  debt 
due  from  the  deceased  within  the  meaning  of  the  statute. — 2 
Pick.  361. 

Under  statute  of  1784,  sec.  10,  it  was  held  that  where  a  testa- 
tor had  authorized  his  executor  to  sell  lands  for  the  support  of  his 
widow,  under  certain  circumstances,  and  a  stranger  had  supplied 
the  widow,  the  contingency  having  happened  after  the  executor's 
death,  the  claim  on  the  estate  in  favor  of  such  stringer  did  not 
constitute  a  debt  within  the  meaning  of  the  statute,  so  as  to  au- 
thorise an  administration  de  bonis  non.    2  Mass.  168. 

Where  a  will  nominating  an  executor,  says — "  I  likewise  ap- 
point him  my  executor  to  settle  my  business,  to  pay  off  all  my 
debts  and  accounts,  which  he  may  think  just,  though  they  may 
not  be  proved  according  to  law:" — Held,  the  executor  has  plenary 
power,  and  the  appointment  of  an  administrator  de  bonis  non  is 
void.    3  Dana,  131. 

§  3.  Where  a  court  of  competent  jurisdiction  has  granted  ad- 
ministration of  an  intestate's  estate,  the  same  court  has,  alone, 
jurisdiction  to  grant  administration  de  bonis  non.    2  Leigh,  761. 

§  4.  An  administrator  de  bonis  non  can  maintain  an  action  for 
those  articles  only  which  remain  un-administered. — 1  Howard, 
68,  87,  146,  154--His  liability  is  limited  to  them--8  Count.  584. 
His  powers  are  limited  to  subjects  not  administered.— -i6wZ.  and 
Stubblefield  vs.  M'Craven,  5Sm.  &M.  130.  He  cannot  there- 
fore sue  for  a  devastavit  committed  by  his  predecessor,  lb. — ^and 
see  4  Dana,  628. 


CH.  XXXVll.]        ADMINISTRATOR — DE  BONIS  NON.  256 

Where  the  heirs  had  sold  the  land  on  which  their  ancestor  held 
a  mortgage,  for  a  consideration  to  be  paid  to  them,  and  20  years 
had  elapsed — the  presumption  is,  that  the  personal  representa- 
tives assented  thereto,  and  the  money  will  not  be  decreed  to  the 
administrator  de  bonis  non.    4  Dana,  628. 

Where  an  administrator  takes  a  note  payable  to  himself,  as  such, 
for  debt  to  the  estate,  and  dies,  and  administration  de  bonis  non  is 
granted,  the  legal  title  to  the  note  is  in  the  representative  of  the 
deceased  administrator,  but  the  equitable  title  is  in  the  adminis- 
trator de  bonis  non — and  if  on  a  final  settlement  of  accounts  the 
amount  of  the  note  appears  to  be  due  to  the  estate  of  the  first  ad- 
ministrator, the  administrator  de  bonis  non  will  be  entitled  to  pos- 
session of  the  note.    2  Hill's  Ch.  R.  29. 

An  administrator  de  bonis  non,  who  is  also  executor  of  his  de- 
ceased administrator,  who  fails  for  a  long  period  to  call  the  agents 
of  the  former  administrator  to  account,  is  chargeable  with  the 
whole  of  the  balance  appearing  to  be  due  from  those  agents,  un- 
less he  can  relieve  himself  from  the  charge  of  gross  negligence. 
2Brock.C.C.R.159. 

k  An  administrator  de  bonis  non  cannot  recover  from  the  admin- 
istrators of  A.'s  executors,  in  assumpsit  for  money  had  and  re- 
ceived by  such  executor  to  their  use,  and  mixing  such  demand 
with  others  is  error.     1  S.  &  R.  549. 

Whether  administrator  of  A.  is  entitled  to  recover  in  any  form 
of  action  against  the  administrator  of  the  executor  of  A.  the  balance 
due  to  the  estate  of  such  executor — query. — Ibid. 
I.  Where  A.  and  B.  were  administrators  of  C,  and  B.  died,  and 
administration  of  his  estate  was  taken  out  and  bond  given — A. 
settled  his  accounts,  and  was  charged  with  the  whole  personal 
estate,  but  by  report  of  the  auditors,  B.  appeared  accountable  for 
part — held:  If  A.  bring  suit  on  such  administration  bond  and  die, 
the  name  of  C.'s  administrator  de  bonis  non  should  not  be  insert- 
ed as  plaintiff— but  it  should  be  A'.s  administrator.    2  S.  &  R.  548. 

A  bill  by  administrator  de  bonis  non  against  former  adminis- 
trator to  account,  his  letters  having  been  revoked — defendant's 
wife  was  one  of  two  distributees — he  had  paid  the  debts  and  ob- 
tained the  assignment  of  the  other  two  distributees — Held:  the 
assignment  could  not  be  impleaded  by  the  plaintiffs.     If  fraud- 


256  ADMINISTRATOR DE  BONIS  NON.        [CH.  XXXVIU 

ulent  only,  the  distributee  or  his  representative  could  impeach  it 
— if  in  fraud  of  creditors,  they  only  could  complain ; — and  for  the 
same  reason,  the  will  of  the -distributee  disposing  of  his  interest 
in  the  estate  was  rejected.     2  Hill's  Ch.  R.  500. 

The  rule  is  the  same,  though  judgments  remain  of  record  un* 
satisfied,  especially,  when  from  lapse  of  time  they  may  be  pre* 
sumed  to  be  satisfied,  and  where  the  judgment  creditors  are  not 
parties  claiming  payment,  the  creditors  should  come  in  and  swear 
that  their  judgments  are  unsatisfied ;  and  it  should  appear  that 
the  defendant  had  notice  of  their  demands  within  the  year.  Af- 
ter that,  without  notice,  he  would  not  be  liable  as  administrator, 
and  creditors  would  have  their  remedy  against  distributees.  2 
Hill's  Ch.R.  501. 

In  an  action  by  an  administrator  de  bonis  non  against  the  sure- 
ty of  the  former  administrator  to  recover  a  balance  due  on  the  ad- 
ministration account,  testimony  offered,  on  the  trial,  by  the  de- 
fendants, is  competent  and  admissible,  which  tends  to  show  that 
the  amount  sued  for  was  a  debt  due,  from  the  witness  and  another 
to  the  estate,  and  that  in  payment  of  it,  the  administrator  who  was 
insolvent,  took,  in  liquidation  of  so  much  from  the  witness,  a  debt 
due  by  said  former  administrator  to  the  witness,  and  if  the  proof 
shows,  that  the  act  took  place  by  collusion  between  the  parties  in 
fraud  of  the  estate,  there  would  not  be  an  extinguishment  of  the 
debt  due  from  the  witness  and  another  to  the  estate,  for  that  part 
of  it  which  was  pretended  to  be  extinguished  by  the  receipt,  by 
the  administrator  of  the  claim  against  himself,  and  the  witness 
would  be  still  liable,  and  the  administrator  dt  bonis  non  would 
have  to  resort  to  him,  and  could  not  claim  to  recover  of  the  sure- 
ties of  the  first  administrator.  1  How.  146. 
■  Where  it  appears  from  the  inventory  of  an  administrator  that 
he  has  returned  and  given  an  account  of  a  specific  sum  of  money 
"on  hand,"  "the  goods,  and  chattels,  and  credits  of  his  intestate," 
which  he  has  failed  to  pay  over,  the  administration  bond  may  be 
put  in  suit  for  the  benefit  of  a  legatee,  distributee,  or  creditor,  but 
not  for  the  benefit  of  the  administrator  de  bonis  non,  the  act  of 
accounting  for  the  money  in  the  inventory  being  an  act  of  ad- 
ministration, and  the  failure  to  pay  over,  mal-administration. — 1 
How.  87.    An  administrator  de  bonis  non  can  have  no  interest 


CH.  XXXVlll.J       ADM'r.  in  chief — WHO  QUALIFIED.  257 

in  a  recovery  for  mal-adrainistration,  because  the  law  only  con- 
templates on  his  part  a  due  administration  of  the  assets  not  al- 
ready administered.    Ibid. 

§  5.  An  administrator  de  bonis  non  is  not  liable  to  an  action 
on  the  implied  warranty  of  the  soundness  of  a  slave,  the  proper- 
ty of  his  intestate,  sold  by  his  predecessor,  under  an  order  of  court. 
2  Bailey's  So.  Car.  R.  317. 

So,  a  judgment  against  the  administrator  de  bonis  non  is  no 
ground  for  a  suit  against  the  former  administrator,  for  a  devastavit 
— 5  B,  Monroe,  490 — and  vice  versa — 8  Connt  584.  The  reason 
is,  there  is  no  privity  between  the  former  administrator  and  the 
administrator  de  bonis  non.    Ibid* 

If  on  final  settlement  of  the  administrator  he  be  allowed  any 
commissions,  he  may  retain  any  money  of  the  estate  in  his  hands, 
not  exceeding  such  commissions  in  amount.  (Stubblefield  vs.  M'- 
Craven,)  5  Sm.  &  M.  130 — See  title  "Inventory,"  sec,  15,  post. 


.CHAPTER  XXXVIII. 

ADMINISTRATOR  IN  CHIEF WHO  QUALIFIED? 

§  1.  No  letters  of  administration  shall  be  granted  to  any  pe^ 
son  under  the  age  of  twenty-one  years ;  or  of  unsound  mind ;  in- 
capable according  to  law,  of  making  a  contract ;  or  convict  of  any 
crime,  rendering  him  infamous  according  to  law ; — and  any  ques- 
tion respecting  age  or  infamy,  or  soundness  of  mind  as  afore- 
said— may  be  heard  and  determined  as  if  the  same  respected  a 
person  named  as  executor.    How.  &  H.  sec.  41,  p.  397. 


^A  former  administrator  not  shown  to  have  committed  a  devastavit,  is  a  good 
witness  for  the  administrator  de  bonit  non.    5  B.  Monroe,  489. 

33 


258  ADMINISTRATORS — IN  CHIEF.  [CH.  XXXIX. 

§  2.  No  question  respecting  age  or  infamy  shall  be  determin* 
ed  by  the  Orphan's  court,  without  summoning  the  person  named 
in  the  will  as  an  executor,  or  entitled  to  administration,  and  al- 
leged to  be  under  age  or  infamous,  provided  he  or  she  be  in  the 
State,  or  without  giving  such  notice  by  advertisement  or  other- 
wise as  the  court  shall  direct,  in  case  he  or  she  be  out  of  the  State, 
and  hearing,  in  case  the  party  shall  attend  agreeably  to  such  sum- 
mons and  notice.     How.  &  H.  sec.  42,  p.  397. 

§  3.  All  the  provisions  of  this  act  relative  to  an  executor  or  ad- 
ministrator, shall  apply  and  extend  to  an  executrix  and  administra- 
trix, or  executors  and  administrators  respectively,  unless  other- 
wise expressly  provided  for ;— and  whenever  a  party  in  the  sin- 
gular number,  or  a  male  party  is  mentioned,  the  rule  shall  apply 
to  a  female,  or  to  two  or  more  having  a  joint  interest  or  jointly 
concerned,  applying  or  called  upon,  so  far  as  the  rule  can  prop- 
erly apply,  or  so  far  as  is  not  otherwise  directed. — How.  &  H. 
ch.  36,  p.  397.  This  section  of  the  act  extends  to  all  the  statutes 
affecting  executors  and  administrators. 


CHAPTER  XXXIX. 


ADMINISTRATOR—IN    CHIEF. 


§  1.  An  executor  or  administrator  is  the  only  organ,  through 
whom  the  rights  of  the  next  of  kin  can  be  ascertained,  and  there 
must  be  an  administration — 1  M'Cord's  Ch.  R.  324 — And  gen- 
erally the  executor  or  administrator  is  the  only  organ  through 
whom  creditors  can  get  at  the  funds  of  an  estate,  or  to  whom  a 
debtor  is  answerable. — Ibid.  No  person,  though  next  of  kin,  can ' 
sue  at  law  or  in  equity  for  the  personal  property  of  an  intestate, 
unless  he  take  out  administration. — 2  M'Cord's  Ch.R.514.    None 


CH.  XL.]  administrator's  INVENTORY.  259 

but  an  executor  or  administrator  can  call  on  a  third  person,  for 
any  thing  due  to  the  deceased. — Ibid.    (See  ante  pages.)* 


CHAPTER  XL. 

\  administrator's  inventory. 

§  1.  In  every  case  where  letters  testamentary  or  of  adminis- 
tration or  collection,  are  granted,  in  order  that  all  persons  inter- 
ested in  the  personal  estate,  may  have  an  opportunity  of  know- 
ing, as  nearly  as  may  be,  the  amount  of  the  same,  an  inventory 
(in  case  the  estate  lies  in  one  county,  or  can  be  conveniently  col- 
lected together,)  or  inventories,  (in  case  the  property  lies  in  more 
than  one  county,  or  cannot  be  conveniently  collected  together,) 
shall  be  returned  to  the  office  granting  the  administration.  How. 
&  H.  sec.  52,  p.  400 — See  sec.  12,  post. 

§  2.  On  granting  any  letters  testamentary  a  warrant  or  war- 
rants shall  issue,  under  the  seal  of  office,  authorizing  three  or  more 
persons  of  discretion,  not  related  to  the  deceased,  nor  interested 
in  the  administration,  to  appraise  the  goods  and  chattels  and  per- 
sonal estate  of  the  decedent,  known  to  them  or  to  be  shown  by 
the  executor,  administrator,  or  collector.  How.  &  H.  sec.  53,  p. 
400.    For  form  of  warrant,  see  Ibid. 

On  the  death,  refusal  to  act,  or  neglect  of  any  appraiser,  anoth- 
er warrant  may  issue  forthwith,  in  its  stead.-— Ibid.  (See  sec.  13, 
post.) 

§  3.  Before  proceeding  to  act,  the  appraisers  shall  take  the  fol- 
lowing oath,  or  affirmation,  (as  the  case  may  be,)  annexed  to  or 
endorsed  on  the  warrant,  before  any  person  authorized  to  admin- 
ister an  oa.ih.—-Ibid.    (See  form  of  oaiih-— Ibid.) 


*The  husband  of  an  executrix  may  exercise  all  the  powers  of  an  executor,  io 
consequence  of  the  appointment  of  his  wife,  without  any  qualification  on  his  part, 
lHow.3^.     But  the  right  does  not  survive  the  wife.     Ibtd. 


260  administrator's  inventory.  [ch.  XL, 

The  appraisers  shall  proceed  as  conveniently  as  may  be,  to  the 
discharge  of  their  duty,  and  shall  set  down  each  article  with  the 
value  thereof  in  dollars  and  cents — all  the  valuations  on  one  side 
of  the  paper  shall  be  set  down  in  one  column  distinctly  in  figures 
opposite  to  their  respective  articles — the  contents  of  each  column 
shall  be  cast  up  and  set  down  under  the  last  column.  How.  &  H. 
sec.  53,  p.  400. 

§  4.  When  the  inventory  is  finished,  the  appraisers  shall  cer- 
tify the  same,  under  their  hands  and  seals,  and  a  certificate  of 
their  having  taken  the  oath  aforesaid  shall  be  thereto  annexed, 
and  every  inventory  shall  be  returned  to  the  proper  office  with- 
in six  calendar  months  from  the  date  of  the  letters  testamentary, 
of  administration  or  collection — or  within  such  time  as  the  case 
may  require,  and  the  court  shall  appoint.  Further  time,  on  ap- 
plication of  either  party,  may  be  granted  by  the  court.  And  it 
shall  be  the  duty  of  every  executor,  administrator  and  collector, 
to  return  the  inventory  or  inventories  which  shall  be  delivered  to 
him  by  the  appraisers,  and  on  failure  thereof,  an  attachment  may 
issue  to  enforce  the  return.  On  return  of  such  attachment  "exe- 
cuted," the  court  may  fine  the  party  not  exceeding  fifty  dollars. 
How.  &  H.  sec.  55,  p.  401. — See  sec.  13,  •post. 

§  5.  If  there  be  any  person  interested  in  the  estate  within  tkree 
miles  of  the  place  where  the  personal  property  is  to  be  appraised, 
it  shall  be  the  duty  of  the  executor,  administrator  or  collector,  and 
of  the  appraisers,  to  give  notice  to  said  persons,  or  at  least  two  of 
them,  of  the  time  and  place  appointed  for  making  the  appraise- 
ment.   How.  &  H.  sec.  55,  p.  401. 

§  6.  Every  executor,  administrator  or  collector,  shall  return, 
within  the  time  and  under  the  pain  aforesaid,  with  an  affidavit 
of  the  truth  annexed,  an  inventory  of  the  money  belonging  to  the 
deceased,  which  has  come  to  his  hands,  and  of  the  debts  due  to 
the  deceased,  which  have  come  to  his  knowledge,  specifying  the 
nature  of  each  debt,  and  setting  down  such  as  he  or  she  shall 
deem  Sf  trait,  distinct  and  separate  from  those  which  he  or  she 
shall  deem  desperate  and  doubtful.  How.  &  H.  sect.  57,  page 
401. 


CH.  XL.]         '      administrator's  INVENTORY.  261 

'§7.  Inventories  and  appraisements,  or  authenticated  copies 
thereof,  may  be  given  in  evidence  in  any  suit  by  or  against  the 
executor,  administrator  or  collector,  but  shall  not  be  conclusive 
for  or  against  him,  if  other  testimony  be  given,  that  the  estate  was 
really  worth  or  was  bonafidt  sold  for  more  or  less  than  the  ap- 
praisement. And  each  appraiser  shall  be  entitled  to  $2  per  day, 
for  his  attendance,  to  be  paid  by  the  executor,  administrator  or 
collector,  and  charged  to  the  estate.  How.  &  H.  sec.  56,  p.  401 . 
See  sec.  14,  post. 

§  8.  Whenever  personal  property  of  any  kind,  or  assets,  not 
mentioned  in  an  inventory  already  made  out,  shall  come  to  the 
possession  or  knowledge  of  an  executor,  administrator  or  collector, 
an  account  or  inventory  of  the  same  shall  be  returned  appraised 
by  three  respectable,  disinterested,  sworn  appraisers,  appointed 
as  aforesaid  within  two  calendar  months  from  the  time  of  the  dis- 
covery.— How.  &  H.  sec.  58,  p.  401 — See  note  to  sec^  14,  jpost. 

§  9.  In  case  an  inventory  be  returned  by  a  collector  duly  ap- 
pointed, the  executor  or  administrator  thereafter  administering, 
shall  within  three  calendar  months  after  the  date  of  his  or  her 
letters  testamentary,  or  of  administration,  either  return  a  new  in- 
ventory in  place  of  the  collector's  inventory,  or  an  acknowledg- 
ment in  writing,  that  he  or  she  hath  received  from  the  collector, 
the  articles  contained  in  the  first  inventory,  or  consent  to  be  an- 
swerable for  the  same,  in  the  same  manner  as  if  the  said  inventory 
had  been  made  out  after  his  or  her  administering  on  the  estate — 
Provided,  that  nothing  herein  contained,  shall  be  construed  to 
render  any  executor  or  administrator  answerable  for  not  making  a 
return  of  the  inventory  aforesaid,  where  it  shall  appear  to  the 
court,  that  he  or  she  hath  been  prevented  from  making  such  re- 
turn, by  the  improper  detention  of  the  goods  of  the  deceased,  by 
the  collector  aforesaid.    How.  &  H.  sec.  59,  p.  401,  402. 

§  10.  If  there  be  more  than  one  executor,  administrator  or  col- 
lector, named  in  the  letter,  any  one  or  more  of  them,  on  the  neg- 
lect of  the  rest,  may  return  an  inventory ;  and  the  executor,  ad- 
ministrator or  collector  so  neglecting,  shall  not  thereafter  inter- 
fere with  the  administration,  or  have  any  power  over  the  per- 
sonal estate  of  the  deceased; — but  the  executor,  collector  or  ad- 
ministrator, so  returning,  shall  thereafter  have  the  whole  admin- 


262  administrator's  inventory.  [ch.  xl. 

istration,  unless  within  two  months  after  the  return,  the  delin- 
quent or  delinquents  shall  assign  to  the  court  some  reasonable  ex- 
cuse, which  it  shall  deem  satisfactory.     Ibid.  sec.  65,  p.  403. 

§  11.  If  an  executor,  administrator  or  collector,  shall  not  with- 
in six  months  after  the  date  of  his  letters,  exhibit  to  the  Orphan's 
court  an  inventory  of  the  estate  of  the  testator  or  intestate,  or  at 
such  other  time  as  the  court  shall  appoint,  a  summons  returnable 
within  not  less  than  eight,  or  more  than  thirty  days,  may,  ex  officio, 
or  on  application  of  a  person  interested,  be  issued  against  such 
executor,  administrator  or  collector,  to  show  cause  wherefore  such 
inventory  hath  not  been  exhibited,  and  if  the  summons  be  duly 
returned  "summoned,"  or  upon  two  citations  returned  "non  est," 
by  the  sheriif  of  the  county,  wherein  the  party  resided  at  the 
time  of  obtaining  letters,  and  he  do  not  appear  at  the  return  of 
such  summons,  or  appearing  shall  not  show  sufficient  cause,  the 
said  court  may  immediately  enter  on  its  proceedings  and  record, 
that  the  said  letters  be  revoked,  and  may  grant  other  letters,  &c. 
Ibid.  sec.  64,  p.  403. 

§  12.  If  no  goods  come  to  hand,  no  inventory  is  required. — 1 
Pick.  20;  5  Cranch.  19. 

The  estate  not  having  come  to  the  knowledge  of  the  executor, 
administrator,  or  collector,  does  not  render  him  liable. — 1  Dana, 
271. 

Administrators  are  bound  to  inventory  and  account  for  provis- 
ions belonging  to  the  deceased  at  the  time  of  his  death.— 5  New 
Hamp.  492 — See  "Assets,"  and  "Devastavit,"  post. 

§  13.  The  Probate  court  may  compel  an  administrator  to  ex- 
hibit an  inventory.    7  How.  311. 

,  A  judge  of  probate  ought  not  to  reject  an  inventory  exhibited 
by  an  executor  or  administrator,  because  it  contains  property  the 
title  to  which  is  disputed — for  the  rights  of  claimants  of  the  prop- 
erty cannot  be  concluded  by  his  decision.     Kirby,  100. 

It  is  the  duty  of  an  administrator  to  inventory  property  fraud- 
ulently conveyed  by  the  intestate,  and  he  is  entitled  to  the  custody 
of  such  property,  especially  if  the  estate  is  insolvent,  and  it  is 
needed  for  the  payment  of  debts,  and  he  may  recover  it  out  of  the 
hands  of  the  fraudulent  grantee.— -11  Connt.  283. 


CH.  XL.]  administrator's  INVENTORY.  263 

Money  in  the  hands  of  the  intestate's  wife,  at  the  time  of  his 
decease,  though  earned  and  received  by  her  before  marriage,  or 
given  to  her  by  her  husband,  must  be  inventoried  as  his  property. 
10  Pick.  429— (But  see  act  of  1846.) 

§  14.  Not  returning  an  inventory  on  the  estate  of  his  intestate, 
is  not  sufficient  to  charge  the  administrator  with  a  debt  of  the 
intestate.--2  Har.  &  J.  373.* 

Under  our  law,  (Mississippi,)  it  seems  nothing  will  create  a 
presumption  of  assets. — 2  How.  617.  But  a  failure  to  return  an 
inventory,  or  receipt  of  the  profits  of  the  estate,  and  conversion  of 
them  to  his  own  use,  make  an  administrator  liable  on  his  bond. — 
2  How.  813. 

A  failure  by  an  administrator  to  make  an  inventory  of  debts 
due  by  him  to  his  intestate,  may  be  a  breach  of  duty  for  which  he 
can  be  made  liable  on  his  administration  bond.  Yet  it  does  not 
result  that  the  debts  due  by  the  administrator  are  extinguished, 
and  the  amount  in  his  hands  so  much  money  with  which  he  is 
chargeable.     1  How.  68. 

"One  of  two  things  is  required  to  be  done  before  the  debt  can 
be  considered  as  so  much  money  in  the  hands  of  the  executor: — 

Either-— 1st.  He  shall  give  in  the  claim  against  himself,  in  the 
list  of  debts  due  to  the  deceased — 

Or— -2d.  In  ease  he  fail  to  do  that,  it  must  be  found  against 
him  in  the  Orphan's  court,  by  referees,  or  by  an  issue  in  the  Cir- 
cuit court. 

"  I  do  not  think  the  debtor  should  be  placed  in  a  worse  situa- 
tion by  becoming  administrator  of  his  creditor.  The  statute  does 
not  make  him  accountable,  until  the  justice  of  the  claim  shall 
have  been  established,  either  by  his  own  confession  entered  in  the 
inventory,  or  by  a  legal  determination  against  him  by  a  jury. — 
See  1  How.  81, 82,  citing  11  Mass.  256;  12  ib.  199;  Toller,  348. 
(See  title  "Assets,"  sec.  13,  p.  273.) 


*A  copy  of  a  paper  purpoling  to  be  an  additional  inventory  of  the  estate  of  the 
deceased,  certified  under  the  hand  and  seal  of  the  Register  of  wills,  to  be  a  true 
copy  taken  from  the  original  additional  inventory  offered  by  the  administrator  and 
lodged  in  the  office  of  the  Register,  was  held,  not  to  be  competent  evidence  to 
charge  the  administrator  with  the  amount  of  the  goods  and  chattels  therein  men 
tioned — 2  Har.  &,  J.  214 — otherwise  as  to  an  original  paper.     Ihid. 


264  ,     administrator's  inventory.  [ch.  xl. 

A  claim  for  rent  due  to  the  testator  not  having  been  mention- 
ed in  the  inventory,  or  the  executors  having  settled  their  account 
in  the  Orphan's  court,  and  on  the  credit  side  prayed  allowance 
for  it,  as  not  being  collected,  cannot  conclude  them  as  against  the 
debtor.  They  may  still  recover,  and  in  case  of  recovery  they  are 
liable,  notwithstanding  said  account,  to  those  beneficially  inter- 
ested.   Sax.  Ch.  R.  404. 

§  15.  An  administrator  de  bonis  non  must  return,  in  the  time 
prescribed,  an  inventory  of  all  the  estate  real  or  personal,  that 
comes  to  his  hands,  whether  included  in  the  former  inventory  or 
not — otherwise,  it  is  a  breach  of  his  bond. — 2  Chip.  16.  So  if  he 
do  not  settle  his  account  within  the  time,  a  settlement  after  judg- 
ment on  the  bond  by  nil  dicit,  is  no  bar  to  an  action  by  a  party 
interested  for  his  share  of  the  penal  sum.     Ibid. 

In  an  action  on  a  probate  bond,  alleging  as  a  breach  the  neglect 
of  the  administrator  to  make  and  exhibit  an  inventory  of  certain 
property  belonging  to  the  intestate,  within  the  time  specified  in 
the  condition  of  the  bond — Held,  that, 

1st.  An  action  accrued  for  neglect,  though  the  time  limited  for 
rendering  the  administration  account  had  not  expired. 

2d.  The  damages  should  not  exceed  the  value  of  the  goods 
omitted  from  the  inventory,  nor  the  amount  of  the  debt  sued  for. 
3  Connt.  R.  389— See  also  2  How.  905. 

§  16.  In  an  action  on  a  bond  for  not  filing  an  inventory,  the 
relator  must  show  a  loss  resulting  therefrom.     1  Cowen,  189. 

Damages  may  be  assessed  for  a  failure  to  make  and  return  an 
inventory.     1  Miss.  686. 


UH.  XLl.J  ASSETS.  265 

CHAPTER  XLI. 

^l/*  ASSETS. 

§  1.  The  appointment  of  an  executor  vests  the  whole  personal 
estate  of  the  testator  in  him.  He  holds  as  trustee  for  the  purpose 
of  the  will,  but  he  holds  the  legal  title  in  all  the  chattels  of  the 
testator.--8  Cranch.  9;  4  Connt.  347;  10  Pick  463;  9  Mass.  337, 
352.  This  interest  is  incompatible  with  any  power  in  the  Ordi- 
nary to  transfer  those  chattels  to  any  other  person  by  the  grant  of 
administration. — 8  Cranch.  9. — See  page  222,  sec.  9. 

This  power  extends  to  all  the  estate,  as  well  for  payment  of 
debts  as  for  distribution,  and  the  court  will  not  enquhe  for  which 
purpose  he  seeks  to  recover. — Sax.  Ch.  R.  [N.  Jersey,]  437.  He 
has  all  the  power  over  it,  existing  at  common  law. — 3  Mass.  514, 
518. 

And  although  after  the  death  of  a  decedent  the  property  may 
be  considered  in  abeyance,  till  administration  is  granted,  and  then 
vests  by  relation  to  the  time  of  the  intestate's  death — 12  Mass.  309; 
23  Pick.  128 — yet  an  heir  has,  interim,  only  such  an  interest  as 
is  necessary  to  the  safe  keeping  of  the  property.     Ibid. 

But  the  interest  of  the  executor  or  administrator  extends  only 
to  property  within  the  State.--7  John,  Ch.  R.  45;  1  ib.  153;  6  ib. 
353;  3  Mass.  514.* 

§  2.  The  lands  of  an  intestate  or  testator,  go  to  the  heir,  and 
are  not  assets  in  the  hands  of  an  executor  or  administrator, 
unless  the  personalty  prove  insufficient  to  pay  debts,  &c. — 2  Pe- 
ters, 492;  4  Henn.  &  Munf.  57;  3  Mass.  258;  4  ib.  356;  1  ib.204; 
11  ib.  190. 


*But  if  an  administrator  receives  foreign  assets,  an''  does  not  inventory  and  ac- 
count for  them,  or  procure  any  settlement  of  them  in  the  Probate  court,  and  a  dis- 
tribution of  them  according  to  law — though  he  be  guardian,  he  will  be  deemed 
to  have  received  them  as  administrator,  and  not  as  guardian.  Some  act  or  ad- 
mission showing  a  retainer  as  guardian  is  necessary  to  exonerate  him  as  adminis- 
trator— 5  Mason's  C.  C.  R.  95 — And  the  sureties  are.  in  such  case,  liable  in  the 
same  manner,  as  their  principal. — Ibid.  Afortiori^  all  would  be  liable,  if  the  ad- 
ministrator never  admitted  receipt  of  such  assets,  but  fraudulently  concealed  the 
fact  from  the  parties  interested.    Ibid. 

34 


266  ASSETS.  [CH.  xu. 

Therefore,  an  administrator  is  not  bound  to  inventory  real  es- 
tate.    1  Mass.  35;  ib.  204;  11  ib.  190. 

Real  estate,  devised  to  be  sold  for  the  payment  of  debts,  is 
tquitohU  assets,  constituting  a  trust  fund  in  the  hands  of  the  ex- 
ecutor, or  administrator  cum  testamento  anntxo — subject  to  the 
control  of  the  Chancellor,  and  distributable  among  the  creditors 
'pro  rata,  without  regard  to  the  dignity  of  their  claims.  4  Dana, 
603. 

An  executor  is  not  chargeable  Mrith  the  proceeds  of  such  sale, 
on  plea  of  pUne  administravit.  Such  plea  will  be  sustained  by 
proof  that  the  legal  assets  have  been  administered.     Ib.  604. 

Nor,  are  rents  and  profits  of  land,  accruing  after  the  death  of 
the  testator  or  intestate,  assets,  though  the  estate  be  insolvent — 
16  Mass.  280;  14  ib.  88;  15  ib.  26;  14  Pick.  345— except  in  ca- 
ses hereafter  mentioned.* 

Nor  are  buildings  assets,  when  placed  by  the  deceased  on  his 
wife's  land — 16  Mass.  449 — And  a  note  to  husband  and  wife  goes 
to  the  wife,  if  she  survives,  and  not  to  the  husband's  administra- 
tor.   16  Mass.  480. 

§  3.  But  a  still  notfsed  to  the  freehold  in  a  house  which  might 
be  injured  by  its  removal,  is  personal  property,  and  goes  to  the 
executor  and  not  to  the  heir.    2  Henn.  &  Munf.  22. 

And,  a  mortgage  on  land,  if  the  debt  secured  be  assets,  must  be 
inventoried.— 16  Mass.  18;  19  Pick.  391,  491;  11  ib.  173;  14  ib. 
399;  9  Mass.  395;  16  Mass.  449— But  the  administrator  of  the 
mortgagor  is  not  entitled  to  the  surplus  proceeds  of  a  sale  of  the 
mortgaged  land.  It  is  considered  a  part  of  the  realty,  and  goes 
to  the  heir.    1  John.  Ch.  R.  119. 

And  an  order  peremptorily  to  sell,  not  conditional,  so  that  none 
of  it  can  go  to  the  devisee  or  heir,  makes  land,  in  equity,  at  the 
moment  of  his  death,  personal  property,  and  an  unconditional 
gift  of  the  proceeds  will  be  a  legacy,  for  which  the  sureties  on 
the  executor's  bond  will  be  liable.    7  Dana,  12. 


*'And  rents  of  land  leased  by  an  executor  acting  under  a  will,  which  is  after- 
wards set  aside,  cannot  be  recorded  either  by  the  subsequent  administrator  or  the 
heir.    2 Bailey's R.  311.  ,,; 


CM.  XLI.]  ASSETS.  267 

But,  if  land  is  devised  to  a  testator's  wife  and  children,  and  a 
discretionary  power  to  sell  is  given  to  the  executor,  the  proceeds 
would  pass  as  a  devise  and  not  as  a  legacy,  and  sureties  on  the 
executor's  bond  would  not  be  liable.— /6, 12.  The  executor  would 
hold  as  trustee,  to  be  reached  in  equity.— -Ibid. 

Pending  a  suit  brought  to  rescind  a  sale  of  land,  a  receiver  is 
appointed — rescission  is  decreed,  and  vendor  dies — the  rents  and 
profits  in  the  hands  of  the  receiver  are  assets.    9  Pet.  276. 

§  4.  Grain  and  annual  fruits  of  annual  labor,  are  assets.— 1  Harr. 
81;  7  Mass.  34. 

The  common  law  gives  to  the  executors  of  a  tenant  for  life  such 
emblements  only  as  were  seeded  in  his  life  time.  As  to  crops  put 
in  after  his  death,  the  executors  (where  the  common  law  rule  ap- 
plies,) should  be  charged  a  reasonable  rent  for  the  land,  to  go  to 
the  reversioners  or  remainder-men.    6  Munf.  514.* 

A  mortgagee  of  real  estate  is  not  entitled  to  the  emblements, 
severed  by  another  person.    9  Connt.  R.  216. 

§  5.  By  act  of  Mississippi,  "  If  any  executor,  administrator  or 
collector,  shall  be  of  opinion  that  it  would  be  of  advantage  to  the 
estate  of  the  testator  or  intestate,  to  dispose  of  the  crop  growing  at 
the  time  of  his  or  her  decease,  it  shall  be  lawful  for  the  Orphan's 
court  of  the  proper  county,  on  the  application  of  such  executor, 
administrator  or  collector,  to  order  the  sale  of  said  crop  either  at 
public  or  private  sale,  on  a  credit  of  six  months,  taking  of  the 
purchaser  or  purchasers  good  and  sufficient  security  for  the  pay- 
ment of  the  purchase  money.  But  if  the  court  shall  on  hearing, 
be  of  the  opinion  that  such  sale  would  not  be  of  advantage  to  the 
estate  of  the  testator  or  intestate,  then  the  executor,  adminstrator 
or  collector,  shall  proceed  to  finish  the  crop  on  hand ;  and  in  that 
case,  no  division  of  the  slaves  employed  in  such  crop  shall  take 
place,  till  the  first  day  of  January  next  after  the  death  of  the  tes- 
tator or  intestate.    And  the  proceeds  of  the  crop  shall  be  assets 


•In  Virginia,  the  provisions  contained  in  the  S4th  section  of  the  act  concerning 
wills,  &c.  "that  the  emblements  severed  between  1st  March  and  Slst  December 
in  any  year,  shall  be  assets  in  the  hands  of  the  executors,"  does  not  apply  to  the 
case  of  an  estate  for  life,  held  under  a  marriage  contract,  dated  in  177& — thou|^ 
the  tenant  for  life  died  in  1801 — and  the  law  enacted  in  1785,  took  effect  1st  Jan- 
nary,  1787.— 6  Munf.  514. 


268  ASSETS.  [CH.  XLI. 

in  the  hands  of  the  executor,  administrator  or  collector,  subject  to 
debts,  legacies  and  distribution — the  taxes,  tools,  the  expenses  of 
feeding  the  slaves  to  that  time  and  delivering  them  well  clothed, 
being  first  deducted ;  and  in  either  case  the  executor,  administra- 
tor or  collector,  shall  render  an  account  to  the  Orphan's  court  of 
his  proceedings,  in  relation  to  said  crop. — How.  &  H.  sec.  63, 
p.  403 — (amended  by  section  107,  p. 416,  as  follows: — "The 
ninety-third  section  of  an  act  to  which  this  is  an  amendment,  shall 
not  be  so  construed  as  to  prevent  executors,  administrators,  or 
guardians,  from  selling  for  cash,  or  consigning  for  sale,  the  crop 
or  crops  of  cotton  or  corn  they  may  have  charge  of,  provided, 
they  obtain  an  order  from  the  Probate  court  of  the  proper  county," 
See  sects.  6  &  7. 

§  6.  All  debts  contracted  by  an  administrator  who  is  lawfully- 
carrying  on  a  farm,  and  completing  a  crop  growing  at  the  time 
of  the  death  of  the  testator  or  intestate,  so  far  as  such  crops  are 
for  necessaries,  are  privileged  claims  on  the  income  of  the  place, 
although  not  on  the  property;  and  a  subsequent  administrator  is 
bound  to  pay  such  debts.  But  if  the  proceeds  of  the  crop  have 
been  appropriated  to  the  payment  of  debts  due  from  the  deceased 
in  his  life-time,  or  have  been  declared  assets,  then  such  creditor 
is  entitled  to  payment  out  of  any  other  fund  of  the  estate.— 7  How. 
150.  This  case,  decides  that  supplies  of  medicine  and  oils,  may 
be  paid  out  of  the  crop,  and  their  price,  of  course,  deducted  from 
the  amount  reported  as  assets.    Ibid. 

In  this  case,  the  court  say,  "the  object,  reason  and  spirit  of  this 
statute,  evidently  include  some  things  which  are  not  mentioned. 
Whatever  is  essentially  necessary  to  the  making  and  gathering  of 
the  crop,  must  be  included  and  nothing  more.  This  claim  seems 
to  have  been  created  for  medicines,  and  as  such,  may  be  regard- 
ed as  necessaries ;  for  an  administrator  would  be  bound  to  take 
care  of  the  health  of  the  negroes,  by  procuring  medicines  and 
medical  aid,  if  necessary,  although  the  statute  does  not  expressly 
authorize  these  things.  Such  expenditures  are  to  be  paid  out  of 
the  proceeds  of  the  crop,  the  surplus  only  being  assets."    Ibid. 

And  "an  executor  derives  his  authority  from  the  will,  and  is 
authorized  to  take  charge  of  the  estate  of  the  testator  before  he 


CU.  XU.]  ASSETS.  269 

qualifies,  and  expenses  which  he  incurs  in  taking  care  of  the  es- 
tate, are  a  charge  on  it, — lb.    But  see  ante  p.  225,  sec.  12. 

§  7.  Generally  the  executor  should  sell  the  estate  in  the  market 
usually  resorted  to ; — but  if  he  acts  otherwise  in  good  faith,  as 
where  he  shipped  cotton  to  Liverpool,  instead  of  selling  it  in 
Charleston — and  the  Liverpool  price  was  less  than  he  was  ofFerr 
ed  in  Charleston,  he  will  not  be  chargeable  with  the  difference. 
2  Hill,  364.  But  if  the  executor  had  previously  obtained  an  or- 
der of  the  Probate  court,  it  would  be  otherwise  in  Mississippi — 
and  strictly,  the  executor  is  not  liable  for  crops  at  all,  except 
the  crop  growing  at  the  time  of  the  testator's  death,  which  alone 
is  declared  by  the  statute  to  be  assets.  Without  such  statute,  e- 
ven  the  growing  crop,  not  severed,  would  have  belonged  to  the 
heir  or  devisee,  to  whom  the  land  would  have  passed — 16  Mass. 
280;  14  Pick.  345 — except  in  case  of  tenant  for  life,  whose  execu- 
tor would  take  the  crop  as  emblements.  (See  ante  sec.  4,  p.  267.) 
Yet  the  practice  has  long  been,  and  still  is,  for  executors  and  ad- 
ministrators to  hold  the  land  and  negroes  together  for  several 
years,  making  crops,  and  selling  them  without  orders  of  court,  at 
whatever  market  they  please.  This  is  a  fruitful  source  of  fraud, 
which  needs  legislative  reform.* 

§  8.  Where  damages  were  assessed  by  the  county  court  in  fa- 
vor of  the  owner  of  the  land,  through  which  a  highway  had  been 
laid  out  in  his  life-time,  payable  at  a  future  period,  which  did  not 
arrive  till  after  his  death,  they  were  held  to  be  assets,  when  asses- 
sed, and  as  such  to  vest  in  the  executor.    4  Connt.  182. 

So,  of  money  received  of  the  United  States  government  under 
a  treaty,  as  indemnity  for  loss  suffered  in  the  life-time  of  the  an- 
cestor.   20  Pick.  67. 

So,  of  damages  for  breach  of  covenant  of  seizin  if  broken  in  the 
life-time  of  the  covenantee — 4  John.  72 — and  so,  for  breach  of 
covenant  to  convey — 2  Dana,  465.  They  go  to  the  executor  as 
assets,  andnot  to  the  heir.    Ibid. 

So,  land-scrip  issued  to  the  heir  under  the  act  of  1828,  is  lia- 
ble, in  equity,  to  the  debts  of  the  ancestor.     10  Yerg.  1 17. 

*In  Kentucky,  where  a  man  dies  after  the  firstilay  of  March,  his  servants  and 
slaves  are  to  be  kcj)!  on  the  farm  to  the  end  of  the  current  year,  and  the  crop  of 
that  year,  after  paying  certain  pxpenees,  will  be  assets.    5  Dana,  92. 


270  ASSETS.  [CH.  xu. 

The  hire  and  increase  of  slaves  in  the  possession  of  adminis' 
trators  are  assets,  as  much  as  the  slaves,  and  so  the  increase,  the 
administrator  being  trustee,    2  B.  Monroe,  446. 

In  Ohio,  under  act  of  1816,  equitable  interests  are  assets,  and 
could  be  sold  as  real  estate  to  pay  debts.— -9  Ohio  R.  145.  By  the 
same  act  the  court  of  one  county  could  order  a  sale  of  land  in  an- 
other county.     lb.  67. 

Such  also,  it  is  presumed,  would  be  the  rule  in  Mississippi. 

§  9.  Debts  to  a  decedent  are  assets,  but  not  to  charge  the  ad- 
ministrator, till  he  has  received  the  proceeds. — 3  Sm.  &  M.  625. 
If  he  compromise  or  release  a  debt,  and  appear  to  have  done  so 
for  the  benefit  of  the  estate,  he  will  not  be  chargeable  with  it  as 
assets. — Ibid.  He  is  not  responsible  for  loss  of  debts,  unless  oc- 
casioned by  his  fraud  or  wilful  misconduct. — Ibid.  All  debts  are 
presumed  to  be  assets  till  shown  to  be  desperate.     1 1  Wend.  361. 

Where  an  administrator  recovers  in  his  own  name,  on  a  contract 
made  with  him  personally,  after  the  death  of  the  intestate,  respect- 
ing the  estate,  or  for  money  received  by  the  defendant  for  the  use 
of  the  estate,  after  the  death,  he  is  answerable  as  administrator, 
for  the  amount  received,  as  assets. — 14  Mass.  327;  9  ib.  337;  7 
Pick.  100;  20  ib.  67. 

Whatever  money  is  received  by  an  executor  or  administrator,  as 
such,  whether  rightly  or  otherwise,  he  must  account  for,  unless 
he  show  a  legal  liability  to  pay  it  over  to  one  lawfully  claiming 
the  same — 10  Pick.  77 — as  where  he  receives  money  for  land 
sold  by  his  intestate,  though  the  title  prove  defective,  unless  he 
show  that  he  is  under  a  legal  obligation  to  refund. — Ibid.  So 
money  recorded  on  an  appeal  bond  payable  to  administrators. — 5 
Gill  &  John.  102. 

§  10.  By  a  reasonable  construction  of  the  statute,  a  remainder 
or  reversion  expectant  on  the  determination  of  the  estate  for  life, 
or  term  for  years,  though  not  within  the  strict  letter  of  the  statute, 
is  assets  for  the  payment  of  debts. — 14  Mass.  88;  15  ib.  26. — 
Accordingly,  a  reversion  after  a  widow's  dower  may  be  sold  for 
payment  of  debts  by  order  of  court. — 15  Mass.  26;  13  Peters,  464. 
But  real  estate,  or  any  interest  therein,  is  not  assets  till  a  defi- 
ciency of  the  personal  estate. — 3  Mass.  258;  4  ib.  353 — and  see 
sec.  2,  ardt. 


CH.  XLI.]  ASSETS.  271 

* 

Lands  descended  in  another  State  cannot  be  assets  in  this  State. 
9  Mass.  395.  Nor  are  monies  arising  frem  sale  of  such  lands  on 
an  order  of  the  court  of  Probates  there ;  and  cannot  be  so  averred 
in  a  replication  to  a  plea  of  phne  administravit. — 2  Wendell, 
470.* 

§  11.  A  bond  payable  to  an  administrator  in  his  fiducial  capa- 
city, is  assets  in  the  hands  of  the  administrator  dt  bonis  non.  2 
Stew.  133;  2  Hay.  277. 

But  see  7  J.  J.  Marsh.  188 — where  it  is  said,  bonds  executed  to 
an  administrator  in  his  fiducial  capacity,  in  consideration  of  assets 
sold  by  him,  are  not  assets  in  the  hands  of  an  administrator  dc 
bonis  non — not  being  things  left  in  specie,  by  the  intestate.  7 
Dana,  450. 

An  assignment,  taken  by  an  administrator  of  a  mortgage  of  his 
intestate,  is  presumed  to  enure  to  the  estate,  and  one  claiming 
rnider  it  as  enuring  to  the  administrator  individually,  must  rebut 
this  presumption,  as  by  showing  that  the  administrator  purchased 
with  his  own  funds,  or  he  must  show  himself  ignorant  of  any  cir- 
cumstances raising  the  presumption. — 1  Verm.  167.  An  admin- 
istrator being  also  mortgagee,  is  not  liable  to  account  as  admin- 
istrator for  proceeds  of  the  sale  of  the  mortgaged  property. — 3 
Mason,  284. 

Arrears  of  interest  due  a  widow  for  her  thirds,  belong  to  her 
executor  or  administrator,  and  not  to  her  next  of  kin. — 2  Whar- 
ton, 420. 

Where  an  intestate  was  security  for  C. — C.'s  obligation  to  in- 
demnify him  is  not  assets,  till  payment  of  the  note  indorsed  by 
the  intestate  or  his  administrator. — 11  Connt.  283.  In  the  latter 
case  it  has,  in  judgment  of  law,  been  paid  to  the  debtor's  execu- 
tor, and  is  considered  as  money  in  his  hands.     Ibid. 

§  12.  It  is  a  general  rule  that  if  a  creditor  appoint  a  debtor  his 
executor,  and  the  debtor  accepts  the  trust,  this  extinguishes  the 
debt,  unless  it  appear  from  the  whole  will  that  the  testator  did  not 
so  intend.    2  Cowen,  781. 

•Whether  an  heir  at  law,  who  is  also  administrator,  is  liable  for  the  rents  of  real 
estate,  in  his  possession,  without  some  contract  express  or  implied — quere?  6 
Green.  387. 


272  ASSKTS.  [CH.  XLl. 

Such  an  appointment  is  considered  as  a  specific  bequest  to  the 
debtor  of  the  debt,  and  as  such  takes  preference  of  general  lega- 
cies.   2Cowen,78t. 

But  a  qualification,  as  universal  as  the  rule  is,  that  when  there 
is  a  sufficiency  of  assets  to  pay  debts,  the  debt  due  from  the  ex- 
ecutor is  not  discharged,  but  is  considered  as  money  in  the  hands 
of  the  executor. — ^2  Cowen,  781.  The  debt  is  not  extinguished 
as  against  creditors  or  legatees.    Coxe,  153:  19  John.  188. 

But  debts  from  executor  or  administrator  are  so  far  assets,  as  to 
give  jurisdiction  to  the  court  of  Probates  of  the  county  where  the 
executor  resides — Coxe,  153;  2  Connt.  533 — and  a  discharge  by 
an  administrator  there  appointed  is  valid.    Ibid. 

In  Mississippi,  "the  bare  naming  of  an  executor  in  a  will,  shall 
not  operate  to  extinguish  any  just  claim  which  the  deceased  had 
against  him,  but  it  shall  be  the  duty  of  every  such  executor,  ac- 
cepting the  trust,  to  give  in  the  claim  in  the  list  of  debts;  and  on 
his  failure  to  give  in  such  claim  or  any  part  thereof,  any  person 
interested  in  the  administration  may  allege  the  same,  by  petition 
to  the  Orphan's  court  granting  the  administration,  and  the  said 
court,  with  consent  of  parties,  may  decide  on  the  same;  or,  it  may 
be  referred  by  the  parties,  with  the  approbation  of  the  court;  or, 
at  the  instance  of  either  party,  the  court  may  direct  an  issue  or 
issues  to  be  tried,  and  the  same  shall  be  tried  in  the  Circuit  or  Su- 
perior court  of  the  same  county,  and  such  court  shall  have  power 
to  direct  the  jury  and  grant  a  new  trial,  as  if  the  issue  or  issues 
were  on  a  suit  therein  instituted,  and  a  certificate  from  such  court 
or  any  judge  thereof,  of  the  verdict  or  finding  of  the  jury,  under 
the  seal  thereof,  shall  be  admitted  by  the  Orphan's  court,  to  es- 
tablish or  destroy  the  claim  or  any  part  thereof.  And  if  the  ex- 
ecutor shall  give  in  such  claim,  he  shall  account  for  the  sum  due 
in  the  same  manner  as  if  it  were  so  much  money  in  his  hands, 
and  on  failure  his  bond  may  be  put  in  suit."  How.  &  H.  sec.  67, 
p.  404. 

In  like  manner  an  administrator  or  collector  shall  give  in  a 
claim  against  himself,  and  on  giving  it,  or  failing  to  give  it,  there 
shall  be  the  same  proceedings  in  every  respect  as  are  herein  pre- 
scribed, in  regard  to  executors.  How.  &  H.  sec.  68,  p. 404 — &  see 
title  "Inventory,"  ante,  sec.  10,  p.  261 — &  next  sec.  13. 


CH.  XLI.]  ASSETS,  273 

§  13.  Appointing  bond  debtors,  principal  and  sureties  as  ex- 
ecutors of  the  will,  releases  them  from  the  debt,  and  the  amount 
thereby  become  assets  in  the  executor's  hands. — 6  Watts,  42. — 
And  where  the  obligor  in  a  bond  becomes  administrator  of  the 
obligee,  the  bond  is  forever  suspended  and  the  debt  becomes  as- 
sets in  the  hands  of  the  debtor,  as  administrator.    4  Ham.  138. 

In  Mississippi,  the  law  under  our  statute,  is  different. — See  title 
"  Inventory,"  sec.  14,  p.  262,  ante. 

§  14.  An  executor  or  administrator  is  not  bound  in  all  cases 
and  under  all  circumstances  to  litigate  his  testator's  or  intestate's 
title  to  goods  found  in  his  possession,  at  the  time  of  his  death, 
but  which  are  claimed  by  third  persons.  He  is  entitled  to  exer- 
cise his  discretion  on  questions  of  property,  and  if  he  surrender 
the  goods,  he  cannot  be  made  liable  for  the  value,  except  on  proof 
of  negligence  or  fraud.     1  Bailey's  R.  528. 

It  is  the  duty  of  the  executor  or  administrator,  to  whom  the  in- 
testate has  made  a  fraudulent  conveyance,  to  inventory  the  estate  so 
conveyed,  as  assets,  without  waiting  to  ascertain  whether  it  will 
be  wanted  or  not,  for  the  payment  of  debts — 3  Count.  389 — Al- 
though the  intestate  or  testator  had  executed  a  receipt  for  the  pur- 
chase money,  none  being  paid. — 17  Mass.  222.  The  executor  or 
administrator  is  entitled  to  the  custody  of  such  property,  fraudu- 
lently conveyed — especially  if  the  estate  is  insolvent  and  needed 
for  the  payment  of  debts — and  he  may  recover  it  from  the  fraud- 
ulent grantee.     1 1  Count.  283— *See  also  1 1  S.  &  R.  377. 

Where  property  is  conveyed  without  valuable  consideration, 
by  a  debtor  to  his  son,  and  possession  accompanies  the  deed,  tho' 
the  deed  be  fraudulent  as  to  the  creditors  of  the  donor,  such  prop- 
erty is  not,  after  the  donor's  death,  assets  in  the  hands  of  the  do- 
nee, even  though  the  donee  is  the  legal  representative  of  the  do- 
nor— and  the  donee  is  not  responsible  for  the  profits  accruing  be- 
fore filing  the  bill  by  the  creditors  of  the  donor,  impeaching  the 
deed  as  fraudulent.     1  Brock.  C.  C.  R.  500. 

*An  executor,  administrator  or  collector,  cannot  avoid  a  gift  made  by  his  testa- 
tor or  intestate,  as  fraudulent — 1  Bailey,  528.  He  has  no  rights  except  what  his 
teatator  or  intestate  had — 2  Hill's  Ch.  R.  613— And  his  being  also  creditor  does  not 
alter  the  rule — 7  John.  161 — But  in  the  latter  case,  he  may,  as  creditor,  sue  the 
grantee  as  executor  de  son  tort.    Ibid.    But  see  1 7  Mass.  222 ;  3  Count.  389. 

35 


274  ASSETS.  [oh.  xli. 

A  loan  of  slaves,  though  not  declared  in  writing  duly  record- 
ed, and  therefore  void,  as  to  creditors — the  loanee  having  contin- 
ued in  possession  five  years  without  such  demand  as  would  bar 
their  right,  is  nevertheless  binding  between  the  parties  and  their 
representatives.  If  therefore  the  loanee  die  in  possession  of  such 
slaves,  they  are  not  to  be  considered  as  assets  belonging  to  his  es- 
tate, nor  can  they  be  received  as  such,  being  liable  to  creditors  so 
far  as  assets  in  the  hands  of  the  executors  are  insufficient,  and  no 
farther. — 5  Munf.  503.  In  case  of  such  deficiency,  a  court  of  E- 
quity  will  subject  them  to  the  relief  of  creditors.     Ibid. 

In  an  action  by  an  administrator  for  the  recovery  of  property 
from  a  fraudulent  grantee,  the  defendant  claimed,  that  the  impli- 
ed promise  of  a  person  for  whom  the  intestate  had  been  surety, 
such  person  being  able  to  pay — was  a  claim  which  the  adminis- 
trator was  bound  to  inventory,  and  should  be  taken  into  consider- 
ation in  deciding  whether  or  not,  the  property  sought  to  be  re- 
covered was  needed  for  the  payment  of  debts — Held,  on  motion 
for  a  new  trial,  that  such  claim  was  not  assets  till  the  debt  was 
paid,  and  as  the  insolvency  of  the  estate  was  founded  in  part  on 
the  testator's  liability  as  such  surety,  the  jury  had  passed  on  the 
subject. — 1 1  Connt.  283.  So,  where  the  defendant  in  such  action, 
claimed  that  a  certain  sum  which  he  had  agreed,  in  consideration 
of  the  fraudulent  conveyance,  to  pay  to  each  of  the  five  daughters 
of  the  intestate,  should  be  considered  by  the  jury  as  assets  in  the 
hands  of  the  administrator — it  was  held,  after  verdict  for  the 
plaintiff,  that  the  jury  having  found  the  whole  contract  fraudu- 
lent and  void,  the  administrator  could  establish  no  claim  founded 
on  the  consideration.     Ibid. 

An  administrator  must  inventory  and  administer  notes  belong- 
ing to  his  intestate's  estate,  deposited  in  the  hands  of  a  stranger. 
lFairf.53. 

§  15.  If  the  intestate,  at  his  death,  owned  two  pieces  of  land, 
which  came  to  the  hands  of  the  administrator,  but  which  he  had 
neglected  to  inventory,  and  as  is  alleged,  it  was  fraudulently  con- 
veyed by  the  testator  or  his  intestate — a  scienter  on  the  part  of 
the  administrator  must  be  proved  to  render  him  liable,  for  failure 
to  inventory.    8  Connt.  106. 


»     > 


CH.  XLI.]  ASSETS.  275 

Where  the  creditors  of  an  estate  represented  to  be  insolvent, 
requested  the  administrator  to  inventory  certain  estate,  alleged  to 
have  been  fraudulently  conveyed  by  the  deceased,  and  offered  to 
indemnify  him  therefor — the  refusal  of  the  administrator  was  hdd 
to  be  a  sufficient  cause  for  his  removal,  witl^put  proof  that  the  con- 
veyance was  fraudulent.    7  Pick.  250. 

§  16.  Choses  in  action  which  belonged  to  the  wife  before  mar- 
riage, if  the  husband  has  reduced  them  to  possession,  pass  at  his 
death  to  his  administrator  as  assets,  and  not  to  her.  But  if  he 
dies,  before  having  reduced  them  to  possession,  they  pass  to  her™ 
and  if  she  dies,  before  he  has  reduced  them  to  possession,  they 
pass  to  her  representative  and  not  to  him. — 5  Dana,  92.  *A  pos- 
session, as  administrator  in  right  of  his  wife,  is  not  sufficient. — 3 
Stew.  375. 

In  Kentucky,  slaves  owned  by  the  wife  at  marriage,  or  convey- 
ed to  her  by  bequest  or  otherwise  during  coverture,  vest  by  stat- 
ute in  her  husband  and  pass  to  his  administrator — 4  Dana,  610 — 
unless  it  clearly  appear,  that  it  was  intended  to  bequeath  them  as 
her  independent  and  separate  property;  in  which  case  the  hus- 
band would  be  trustee,  and  equity  would  compel  him  or  his  ad- 
ministrator to  execute  the  trust. — Ibid.  610, 611.  If  in  such  case 
the  husband's  administrator  takes  possession  of  the  negroes,  the 
widow  cannot  maintain  an  action  at  law  for  them — because  the 
legal  title  is  in  the  administrator,  and  the  equitable  title  only  in 
her — unless,  the  administrator  assents  to  her  right,  which  will 
confer  on  her  the  legal  title  also,  and  enable  her  to  sue  for  them 
at  law.    4Dana,610,  611. 

Money,  in  the  hands  of  a  decedent's  wife  at  his  death,  though 
earned  and  received  by  her  before  marriage,  or  given  to  her  after 
marriage  by  her  husband,  is  assets  and  must  be  inventoried.  10 
Pick.  429. 


*An  aesignment  by  the  husband  ot  the  wife's  choses  in  action,  as  collateral 
security,  does  not  deprive  her  of  the  right  of  survivorship,  if  he  die  before  they  are 
reduced  to  poBsession.    1  Rawle,  279. 

But  see  6  John.  112 — which  decides,  that  a  husband  who  survives  his  wife  it 
entitled  to  her  choses  in  action,  whether  reduced  to  possession  or  not — and  in  case 
of  her  death,  go  to  her  personal  representatives. 


276  ASSETS.  [CH.  XLI. 

In  a  case  where  the  complainant  claimed  performance  of  an 
agreement  to  convey  a  house  and  lot  for  the  benefit  of  the  com- 
plainant's wife,  in  expectation  of  which  the  complainant  had 
spent  a  large  sum  in  improving  the  property — the  court  held, 
that  there  not  being  sufficient  evidence  of  an  agreement  to  con- 
vey, that  the  property  should  be  sold,  and  the  improvements  paid 
for  out  of  the  proceeds.  The  property  did  not  bring  the  amount 
expended,  and  it  was  held,  that  the  balance  unpaid  was  not  a 
claim  against  the  wife's  father's  estate,  and  could  not  be  claimed 
of  his  representatives,  his  estate  being  insolvent.     13  Peters,  128. 

Marriage  is  an  absolute  gift  to  the  husband  of  all  the  wife's 
chattels  in  possession,  and  of  her  choses  in  action,  if  he  reduce 
them  to  possession.    8  Mass.  99, 101;  13  ib.  384;  17  ib.  57. 

The  rents  and  profits  of  a  wife's  real  estate  which  accrue  dur- 
ing coverture,  belong  absolutely  to  the  husband,  and  upon  his 
death  constitute  assets  in  the  hands  of  his  representatives.  10 
Pick.  463. 

A  note  payable  to  a  feme  coverte,  is  payable  to  her  husband, 
who  alone  during  his  life  has  power  to  enforce  payment,  and  at 
his  death  it  will  go  to  his  executor  or  administrator.  8  Mass. 
229. 

A  husband  has  control  of  a  legacy  given  generally  to  his  wife, 
and  may  release  or  assign  it  by  a  deed  to  which  she  is  not  a  party. 
5  N.  Hamp.  564.  And  he  may  sue,  after  the  wife's  death,  for  a 
legacy  accruing  to  her,  during  coverture. — 14  Pick.  352.  But  see 
2  Dev.  &  Batt.  272. 

A  testator,  by  his  will,  gave  to  his  daughter  a  legacy,  to  be  paid 
to  her,  in  one  year  after  the  death  of  her  mother.  The  daughter, 
having  married,  died  without  issue,  before  the  death  of  the  moth- 
er, leaving  brothers  and  sisters — Held,  that  the  husband  was  en- 
titled to  administer  upon  and  receive  such  legacy,  when  it  became 
payable.— 3  N.  Hamp.  129;  4  Rawle,  66;  12  Pick.  173— So,  of  a 
wife's  distributive  share. — Ibid.  2  Connt.  564 — ^But  see  3  J.  J. 
Marsh.  208. 

So,  where  a  testator,  in  a  certain  event,  directed  his  lands  to  be 
sold,  and  the  proceeds  divided  among  his  children,  naming  them, 
some  of  whom  were  married,  it  was  held,  that  their  husbands 
took  the  bequest.    3  Rawle,  199. 


CH.  XLI.]  ASSETS.  277 

Where  the  lands  of  a  feme  covert  are  sold  under  the  authority 
of  a  private  act  of  Assembly,  declaring  that  the  purchase  money 
shall  pass  and  be  held,  as  it  would  have  been  if  the  husband  and 
wife  had  joined  in  the  sale,  the  money  belongs  exclusively  to  the 
husband,  and  is  subject  to  his  debts.     1  Litt.  126. 

Where  the  wife  has  a  legal  estate  in  personal  property,  and  the 
right  of  immediate  possession  in  severalty,  the  rights  of  the  hus- 
band will  vest  the  property  in  him.     1  Hill's  S.  C.  191. 

Where  a  feme  sole,  who  is  entitled  to  slaves  in  remainder  or 
reversion,  marries  and  dies  before  the  determination  of  the  par- 
ticular estate,  the  right  vests  in  the  husband.    1  Wash.  30. 

If  the  husband  obtain  possession  of  his  wife's  personal  prop- 
erty, without  having  taken  out  letters  of  administration,  he  may 
retain  it  against  his  wife's  next  of  kin.    6  John.  112. 

In  Mississippi,  the  common  law  rule  on  this  subject  prevailed 
in  its  utmost  rigor,  till  by  the  statute  of  1839,  it  was  enacted  that 
"any  married  woman  may  become  seized  or  possessed  of  any  pro- 
perty, real  or  personal,  by  direct  bequest,  demise,  gift,  purchase, 
or  distribution,  in  her  own  name,  and  as  of  her  own  property — 
provided,  the  same  does  not  come  from  her  husband  after  cover- 
ture."   How.  &H.  332. 

And,  "  hereafter  when  any  woman,  possessed  of  property  in 
slaves,  shall  marry,  her  property  in  such  slaves  and  their  natural 
increase,  shall  continue  in  her,  notwithstanding  her  coverture ; — 
and  she  shall  have,  hold,  and  possess  the  same  as  her  separate 
property,  exempt  from  any  liability  for  the  debts  or  contracts  of 
her  husband."    Ibid.  332. 

And,  "when  any  woman  during  coverture,  shall  become  enti- 
tled to,  or  possessed  of  slaves,  by  conveyance,  gift,  inheritance, 
distribution,  or  otherwise,  such  slaves,  together  with  their  natural 
increase,  shall  enure  and  belong  to  the  wife,  in  like  manner  as  is 
above  provided  as  to  slaves  which  she  may  possess,  at  the  time  of 
maniage."    Ibid.  332. 

And,  "the  control  and  management  of  all  such  slaves,  the  di- 
rection of  their  labor,  and  the  receipt  of  the  productions  thereof, 
shall  remain  to  the  husband  agreeably  to  the  laws  heretofore  in 
force.  All  suits  to  recover  the  property  or  possession  of  such 
slaves,  shall  be  prosecuted  or  deferided,  as  the  case  may  be,  in 


278  ASSETS.  [CH.  XLI. 

the  joint  names  of  the  husband  and  wife."  And  "  in  case  of  the 
death  of  the  wife,  such  slaves  descend  and  go  to  the  children  of 
her  and  her  said  husband  jointly  begotten; — and  in  case  there 
shall  be  no  children  bom  to  the  wife,  during  such  her  coverture, 
then  such  slaves  shall  descend  and  go  to  the  husband  and  his 
heirs.     Ibid.  332. 

§  17.  Under  the  foregoing  statute,  it  has  been  decided,  that 
"  in  a  grant  of  property  to  a  married  woman,  the  words  '  in  her 
own  right'  would  not,  by  the  common  law,  convey  a  separate  es- 
tate in  the  property  to  the  wife,  but  would  operate  as  a  convey- 
ance of  the  property  to  the  husband.    2  Sm.  &  M.  165. 

"A  general  principle  that  governs  in  the  interpretation  of  con- 
veyances of  the  kind  first  spoken  of,  is  that  there  must  be  a  clear 
and  unequivocal  intention  evinced  in  the  instrument  by  the  gran- 
tor, that  the  wife  shall  possess  the  exclusive  interest  in  the  prop- 
erty conveyed.  No  set  form  of  words  is  necessary  to  create  such 
an  estate,  but  it  must  be  clearly  manifest,  either  that  the  husband 
is  excluded,  or  that  the  wife's  control  is  independent  of  the  hus- 
band's power.  The  best  received  technical  phraseology  is  in  the 
employment  of  the  words,  "sole  and  separate  use."  Among  oth- 
er terms  used  in  cases  decided  to  carry  with  them  such  an  estate, 
and  collected  in  Clancy's  husband  and  wife,  are  "to  be  at  her  dis- 
posal"— ^"to  enjoy  and  receive  the  issues  and  profits" — "given  for 
the  livelihood" — "the  wife's  receipt  to  be  a  discharge,  notwith- 
standing her  coverture" — "her  receipt  in  writing  to  be  a  dis- 
charge"— ^"to  be  delivered  up  to  her  when  she  shall  demand  or 
require  the  same." — These  expressions  either  pointedly  exclude 
the  husband,  or  so  plainly  limit  to  the  wife  the  right,  title,  inter- 
est, enjoyment  or  control  of  the  property  conveyed,  as  to  distinct- 
ly and  positively  preclude  the  common  law  authority,  or  investi- 
ture of  property  in  the  husband,  so  as  to  leave  no  doubt  of  the 
design  of  the  grantor  or  donor.    2  Sm.  &  M.  185. 

"The  same  work  has  enumerated  a  series  of  cases,  where  the 
language  has  been  interpreted  to  convey  property  to  the  separate 
use  of  a  feme  covert.  For  example — "  her  own  use  and  benefit" 
— or,  "to  her  use."  In  one  case,  there  was  a  bequest  to  a  married 
woman,  "for  her  sole  and  separate  use;"  and  subsequently  in  the 
same  will,  a  further  amount  "for  her  own  use  and  benefit,"  which 


CH.  XLI.]  ASSETS.  279 

latter  was  held  not  to  invest  a  separate  estate  in  the  wife." — Ibid. 

The  words  "in  her  own  right,"  would  have  been  no  stronger, 
at  common  law,  in  effect,  than  the  phrase  "to  her  own  use  and 
benefit,"  and  would  have  operated  as  a  conveyance  of  the  specific 
property  in  the  deed  to  her  husband,  had  it  not  been  for  the  in- 
tervention of  the  statute." 

"  Frdm  the  whole  tenor  of  the  statute,  it  is  plainly  deducible 
that  it  was  designed  to  guard  the  specific  property  from  any  liabil- 
ity for  the  debts  and  contracts  of  the  husband.  It  reaches  no  fur- 
ther. The  products  of  such  property  follow  the  common  law  rule 
and  belong  to  the  husband,  and  are  liable  to  his  debts  and  con- 
tracts."    Ibid.  186;  ib.  567. 

And,  where  a  married  woman  stood  by,  and  suff"ered  without 
objection  certain  slaves  owned  by  her,  as  her  separate  property, 
to  be  valued  for  her  husband,  and  in  his  presence,  with  a  view  to 
his  taking  stock  in  the  Northern  Bank  (of  Mississippi,)  upon  a 
mortgage  of  the  slaves — Held,  that  her  conduct  was  not  such  as 
would  divest  her  of  her  property.     1  Sm.  &  M.  48. 

In  this  case,  M.  in  the  year  1808,  in  Virginia,  settled  certain 
slaves  upon  her  daughter,  during  her  life,  and  after  her  death, 
upon  her  children,  by  deed,  which  was  recorded  in  the  proper  coun- 
ty of  Virginia,  in  about  eighteen  months  after  its  execution.  The 
parties  resided  in  the  same  place  till  1835,  when  they  moved  to 
Tennessee,  and  in  1836  they  moved  to  this  State,  In  the  year 
1838,  the  husband  of  the  donee  died ;  the  deed  of  settlement  has 
never  been  recorded  in  this  State — Held:  the  property  conveyed 
by  the  deed  of  settlement  was  not  liable  to  the  husband's  debts. 
Ibid. 

A  private  sale  by  an  administrator  who  has  intermarried  with 
the  widow  of  his  intestate,  of  property  belonging  to  the  estate, 
passes  only  the  right  the  husband  acquired  by  marriage,  and  does 
not  affect  the  right  of  the  distributees.     1  Sm.  &  M.  208. 

By  the  common  law,  the  husband  is  entitled,  during  coverture, 
to  the  tisufruct  of  the  wife's  estate,  and  a  lease  of  her  land  by  him, 
is  good  during  coverture.  Nor  is  the  common  law  rule  altered 
by  the  statute  of  February  15th,  1839,  entitled  "An  act  for  the 
protection  and  preservation  of  the  rights  of  married  women." — 4 
Sm.  &  M.  193. 


280  ASSETS.  [CH.  XLI. 

F.  a  judgment  creditor  of  J.  B.  garnisheed  B.,  who  answered 
that  he  owed  J.  B.  or  his  wife,  for  the  lease  of  a  house,  which 
house,  it  appeared  in  the  proof,  was  the  sole  property  of  the  wife 
of  J.B. — Held,  that  the  creditor  of  J.B.  was  entitled  to  the  amount 
due  by  B.  for  the  rent.     Ihid.  193. 

By  act  of  1846,  ch.  13,  p.  152,  the  4th  &  5th  sects,  of  the  act  of 
1839  are  repealed — and  it  is  enacted,  that  "the  rents,  issues  and 
profits  of  real  estate  owned  by  any  married  woman  in  her  own  right, 
at  the  time  of  her  marriage,  while  sole,  or  subsequently  acquir- 
ed by  her  under  the  provisions  of  the  first  section  of  the  act  to 
which  this  is  an  amendment,  shall  inure  to  the  sole  and  separate 
use  and  benefit  of  such  married  woman."  And  further — "when 
any  married  woman  shall  own  and  possess  in  her  own  right,  a 
plantation  and  slaves,  it  shall  be  lawful  for  her  to  acquire,  and 
to  hold  and  possess,  in  her  own  right,  exempt  from  liability  for 
the  debts  and  contracts  of  her  husband,  all  such  stock,  farming 
utensils,  and  implements  of  husbandry,  as  shall  be  necessary  for 
successfully  conducting  the  business  and  operations  of  planting." 
And  further — "the  products  and  proceeds  of  the  labor  of  all 
slaves,  owned  by  a  married  woman,  in  her  sole  and  separate 
right,  shall  enure  to  her  sole  and  separate  use  and  benefit.  And 
it  shall  be  competent  for  her  jointly  with  her  husband  to  make 
any  contract  for  the  sale  or  hire  of  any  such  slaves,  for  their  ne- 
cessary clothing,  maintenance,  care  and  support,  and  for  the  em- 
ployment of  any  agent  or  overseer  for  their  management  and 
control.  And  all  contracts  for  the  purchase  of  supplies  for  the 
plantation  and  slaves,  or  for  the  slaves  alone,  owned  by  any  mar- 
ried woman,  made  by  the  husband  or  wife,  or  by  either  of  them, 
either  express  or  implied,  shall  be  obligatory  on  the  husband  and 
wife,  and  may  be  enforced  against  the  proceeds  and  income  of 
the  separate  property  of  such  married  woman — Provided,  that 
all  sales  of  any  such  slaves,  shall  be  evidenced  by  bill  of  sale  un- 
der seal,  acknowledged  by  such  married  woman,  as  deeds  of  mar- 
ried women  are  required  by  law  to  be  acknowledged."  And  fur- 
ther— "all  suits  for  the  recovery  of  the  property  or  possession  of 
such  slaves,  shall  be  prosecuted  or  defended  in  the  joint  names 
of  the  husband  and  wife.  And  all  suits  upon  contracts,  in  rela- 
tion thereto,  or  affecting  the  separate  property  of  the  wife,  either 


CH.  XH.]  ASSETS.  281 

real  or  personal,  shall  be  prosecuted  or  defended  in  the  joint 
names  of  the  husband  and  wife ;  and  may  be  prosecuted  in  courts 
of  common  law  jurisdiction,  in  all  cases  in  which  said  courts  shall 
have  jurisdiction  of  the  subject  matter  in  controversy  between  un- 
married persons."  ,  > ,  ,  ■  i 

And  moreover — "  it  shall  be  competent  for  a  married  woman 
by  deed  of  conveyance  executed  jointly  with  her  husband,  accord- 
ing to  the  laws  of  this  State  in  relation  to  deeds  made  by  /ernes 
covertes,  to  sell  and  convey  her  real  estate  as  fully  and  eflfectually 
as  she  could  if  she  were  unmarried.  If  any  married  woman  shall 
die  seized  and  possessed  of  real  estate  or  freehold  acquired  under 
the  provisions  of  the  act  to  which  this  is  an  amendment,  her 
husband  surviving  shall  be  entitled  to  tenancy  of  the  same,  by 
curtesy  in  the  same,  as  in  other  cases ;  and  if  she  die  possessed  of 
slaves  or  other  personal  chattels,  as  her  separate  property,  leav- 
ing issue  of  her  body,  either  by  a  former  husband  or  by  her  sur- 
viving husband,  such  slaves  or  other  personal  chattels  shall  de- 
scend to  her  child  or  children,  in  equal  shares.  But  if  she  die 
without  issue  surviving  her,  the  same  slaves  and  other  personal 
property,  shall  vest  in  the  surviving  husband." 

Moreover — ^"a  schedule  of  the  real  and  personal  estate  of  any 
married  woman  now  owned  separately  from  her  husband,  under 
the  provisions  of  this  act,  shall  be  recorded  in  the  clerk's  office  of 
the  Probate  court  of  the  county  in  which  such  property  is  situated, 
within  six  months  after  the  passage  of  this  act,  and  a  similar 
schedule  shall  from  time  to  time,  be  recorded  within  three  months 
after  the  acquisition  of  any  property,  real  or  personal,  by  any  such 
married  woman ;  and  for  making  such  record,  the  clerk  of  Pro- 
bate shall  receive  the  same  fees  as  they  are  entitled  to  for  record- 
ing deeds." 

§  18.  Having  shown  what  are  assets,  we  will  next  enquire 
what  are  not  assets. 

It  has  already  been  seen  that  land  does  not  constitute  legal  as- 
sets, except  when  the  personalty  is  insufficient  for  payment  of 
debts  and  legacies — Sec.  2,  p.  265.    How  land  may  be  converted 
into  assets,  will  hereafter  be  shown.    See  ch.  42. 
36 


282  ASSETS.  Si^^""'[cH.  XLt. 

§  19.  A  payment  of  money,  allowed  to  the  ancestor  for  prose- 
cuting a  person  who  has  violated  the  law  prohibiting  the  slave 
trade,  by  Congress,  to  his  heirs,  is  not  assets. — 13  Peters,  409. — 
The  prosecution  was  not  done  under- authority  of  law,  and  impo- 
sed no  obligation  on  the  government  to  compensate  them.  The 
claim  for  such  services  could  not  be  set  up  as  a  legal  or  equitable 
offset  to  a  demand  of  the  Government  against  him  or  them,  if  any, 
while  under  the  rules  of  law,  any  specific  demand  on  the  Gov- 
ernment founded  on  any  equitable  obligation,  might  be  so  oif- 
setted. — Ibid. 

Only  services  rendered  under  the  law  or  a  contract,  constitute 
a  legal  demand  on  Government.  Services,  under  a  casual  and  in 
some  degree  discretionary  authority,  may  constitute  an  equitable 
claim.  No  individual  can  be  made  a  debtor  against  his  will. — 
Voluntary  benefits  may  be  conferred  on  him,  which  may  excite 
his  gratitude,  or  which  he  may  in  his  generosity  reward.  But 
this  depends  on  his  own  volition.  It  would  constitute  a  singu- 
lar item  under  the  law  of  assets  to  raise  a  charge  against  an  indi- 
vidual for  a  benefit  conferred,  by  some  voluntary  act  of  kindness. 

The  rule  is  the  same,  whether  the  benefit  be  conferred  on  the 
Government  or  on  an  individual.— -/ftiof.  The  claim  against  a 
foreign  government  is  not  of  this  nature,  being  founded  on  the 
law  of  nations,  and  a  perfect  obligation  on  the  offending  govern- 
ment.—76z^.  409  &  486. 

§  20.  Specific  personal  property  held  by  the  deceased  in  trust, 
and  clearly  distinguishable  from  the  testator's  own  property,  is 
not  assets  in  the  executor's  hands,  but  must  be  held  by  him  as  his 
testator  held  it.  Otherwise,  where  the  property  has  no  earmark, 
in  which  case  the  party  entitled  must  come  in  as  a  general  credit- 
or.    11  Pick.  173;  1  Sumner's  C.  C.  R.  131. 

Stock,  held  by  a  trustee,  is  not  assets,  in  the  hands  of  his  ad- 
ministrator or  assignee.     1  Sumner,  133. 

An  executrix  having  a  right  to  the  possession  of  an  estate  for 
life,  or  during  widowhood,  purchased  slaves  with  the  mesne  pro- 
fits ;  and  they  were  held  to  be  her  own  property  and  not  that  of 
the  estate,  notwithstanding  her  declarations  that  they  were  pur- 
chased for  the  estate.    Harper,  42. 


CH.  XLI.]  ASSETS.  283; 

§  21.  The  property  of  a  decedent,  which  by  law  is  exempt  from 
execution,  passes  to  the  widow  and  heirs,  if  any,  and  is  not  assets. 

1  Dana,  271 — and  see  How.  &  H. 

§  22.  Upon  the  death  of  one  partner,  the  surviving  partner  has 
a  right  to  settle  the  affairs  of  the  partnership ;  and  the  adminis- 
trator of  the  deceased  partner  can  only  claim  the  residue  after 
paying  the  deceased  partner's  debts ; — and  where  he  receives 
claims  from  the  surviving  partner  for  collection,  which  are  off- 
setted  by  mutual  claims,  the  administrator  is  liable  only  for  the 
excess  collected  by  him  and  retained  by  consent  of  the  surviving 
partner.    5  Dana,  399;  4  Sm.  &  M. 

§  23.  Where  a  testator  authorized  and  directed  his  executors, 
and  the  survivors  of  them,  to  lay  out  a  certain  tract  of  land  into 
lots,  and  to  sell  and  dispose  of  the  same,  and  he  gave  the  pro- 
ceeds to  certain  nephews  and  nieces,  who  were  also  residuary  le- 
gatees, to  be  equally  divided  between  them,  and  the  executors 
sold  the  lots  and  received  the  proceeds — Held,  that  these  proceeds 
were  received  by  them  as  trustees,  not  as  executors,  and  there- 
fore ought  not  to  be  brought  into  the  administration  account. — 5 
Whart.  228— Sec.  20,  282. 

§  24.  The  money  arising  from  the  sale  of  personal  property  is 
called  legal  assets  in  the  hands  of  the  executor  or  administrator ; 
those  which  arise  from  the  sale  of  the  real  estate  are  called  equit- 
able assets.    5  Peters,  160. 

Outstanding  debts  are  legal  assets — equitable  assets  are  such 
as  can  be  reached  only  through  equity — and  they  alone  are  sub- 
ject to  the  rule  of  equitable  distribution.  4  Dana,  603;  12  John. 
120— See  sec.  4,  286,  post. 

Legal  assets  are  subject  to  distribution  according  to  the  statute. 

2  M'Cord's  Ch.  R.  466.  But  the  doctrine,  as  to  distribution  pari 
passu,  of  the  equitable  assets,  is  not  affected  by  the  statute. — 4 
John.  Ch.  651 — See  title  "Marshalling  Assets,"  post. 

§  25.  Legal  assets  are  first  liable  for  payment  of  all  liens  exist- 
ing before  the  death  of  the  debtor,  before  distribution  among  cred- 
itors under  the  executor's  law. — 2  M'Cord's  Ch.  R.  466 — And  an 
order  for  distribution  will  not  be  made,  before  the  payment  of  all 
debts,  unless  the  executors  are  secured.     Ibid.  430. 


284  '  ASSETS.  [CH.  XLI. 

§  26.  In  paying  debts,  the  following  order  must  be  observed : 

1st.  Personal  estate,  except  specific  legacies,  and  such  as  is 
exempted. 

2d.  The  real  estate,  if  any,  appropriated  by  the  will,  as  a  fimd 
for  the  payment  of  the  debts. 

3d.  The  descended  real  estate,  whether  acquired  since  the  will 
or  not. 

4th.  The  land  specifically  devised,  though  generally  charged 
with  payment  of  debts,  but  not  specifically. — 3  John.  Ch.  C.  312; 
6  Mass.  R.  149. 

§  27.  In  all  cases,  the  personal  estate  is  to  be  first  applied  to 
the  payment  of  debts  and  legacies,  unless  charged  on  the  real  es- 
tate by  the  express  words  of  the  will. — 8  Pick.  29.  The  mere 
charging  a  secondary  fund  with  debts,  does  not  exempt  the  pri- 
mary fund,  or  postpone  its  application,  unless  it  is  manifesty  the 
intent  of  the  testator  to  exonerate  it  for  the  benefit  of  the  residua- 
ry, or  some  other  person. — 3  Wend.  503;  5  Paige,  318.  And 
when  such  intent  is  manifest,  a  lapse  of  the  residuary  bequest  re- 
stores the  residuary  fund  to  its  primary  liability.  3  Wend.  503. 
See  p.  160,  161,  aiUe. 

Even  chattels  specifically  devised,  are  liable  for  the  debts  be- 
fore real  estate,  unless  otherwise  directed  by  the  will.  1  Paige, 
270. 

§  28.  In  case  of  the  exemption  of  the  personal  estate  by  the 
testator's  will,  or  of  its  insufficiency,  the  real  estate  or  land  of  the 
testator  or  intestate  may  be  sold. 

The  modes  of  selling  both  the  real  and  personal  estate  of  a  de- 
cedent, being  generally  regulated  by  statute,  in  each  State,  the 
directions  of  the  statute  in  Mississippi  will  be  selected  as  most 
appropriate  to  this  work,  and  will  form  the  subject  of  the  next 
chapter, — in  cormection  with  such  decisions  of  various  Courts  as 
are  applicable.  .  L 


CH.  XLII.]  EXECR's.  and  ADMr's.  SALES.  285 


CHAPTER  XLII. 

executor's  and  administrator's  sales. 

§  1.  The  will  of  a  testator  is  a  law  to  his  executors,  from  which 
they  ought  not  to  swerve,  unless  specially  authorized  by  some 
proper  tribunal.     Cox,  210;  6  Halst.  145. 

An  executor  has  not  ordinarily  any  power  over  real  estase. — 
His  powers  are  derived  from  the  will — and  he  can  do  no  valid 
act  beyond  his  authority.  Where  a  will  contains  no  special  pro- 
vision on  the  subject,  the  land  of  the  deceased  descends  to  his 
heirs.  This  right  cannot  be  divested  or  impaired  by  unauthori- 
sed acts  of  the  executor.     15  Peters,  93;  How.  &  H.  190. 

But  a  will  may  confer  power  on  an  executor  to  sell  real  estate 
without  a  license  of  court; — and  if  conferred  on  several,  and  one 
or  more  refuses  or  neglects  to  qualify,  a  sale  by  the  residue,  who 
do  qualify,  is  valid.     14  Wend.  90;  2  Green,  283;  ib.  373. 

And  where  executors  are  also  residuary  devisees  and  legatees, 
and  have  given  a  bond  for  the  payment  of  debts  and  legacies  of 
the  decedent,  they  acquire  thereby  an  absolute  title  to  the  estate 
devised,  and  may  sell  the  real  estate  of  the  deceased  and  give  a 
good  title,  without  license  therefor  from  the  court. — 16  Mass.  172; 
5  Pick.  337.  (And  where  such  executors  failed  to  pay  all  the 
debts  of  the  deceased,  it  was  held,  that  a  license  to  an  administra- 
tor de  bonis  non,  to  sell  the  decedent's  real  estate  for  such  pur- 
pose, after  the  statutory  bar  had  intervened,  was  void.  16  Mass. 
172.) 

§  2.  The  will  being  the  law  of  the  executor — therefore,  where 
a  will  confers  a  power  to  sell  land  on  an  executor,  and  the  power  is 
special,  it  can  be  exercised  only  in  the  mode  prescribed  by  the  tes- 
tator— 2  Paige,  202.  Therefore,  where  an  executor  is  authorised 
to  sell  an  estate,  at  public  vendue,  to  pay  off  the  legacies  to  the 
children  of  the  testator  as  they  become  of  age,  and  he  sold  the 
property  at  private  sale,  to  raise  money  for  his  own  use,  before 
the  legacies  became  payable,  the  sale  was  held  to  be  void.    Ibid. 


286  execr's.  and  admr's.  sales.        [ch.  xlii. 

So,  a  power  to  sell,  does  not  authorise  a  barter,  or  exchange. — 
1  Ohio  R.  232.  But  a  power  to  executors  to  raise  money  on  real 
estate  for  the  benefit  of  creditors,  without  specifying  how  it  was  to 
be  raised,  was  held  to  authorise  them  to  sell  for  that  purpose. — 2 
Humph.  357— See  167,  168,  169,  ante. 

§  3.  An  executor,  not  authorised  by  the  will  to  sell  real  estate, 
and  an  administrator,  may  obtain  a  license  to  sell  it  for  payment 
of  debts  and  legacies  where  the  personal  estate  is  insufficient. 

Lands  descend  to  the  heir,  liable  for,  and  subject  to  be  sold  for 
the  ancestor's  debts.  An  administrator  has  only  authority  to  sell 
under  an  order  of  court.  This  power  rests  not  in  his  discretion, 
but  is  conferred  by  the  court,  in  a  state  of  things  prescribed  by 
law. — 2  Peters,  492.  The  order  of  the  court  is  a  prerequisite  in- 
dispensable to  the  very  existence  of  the  power ; — and  if  the  law 
authorising  the  court  to  grant  the  order,  is  repealed,  the  power  to 
sell  can  never  exist.  The  repeal  of  such  law  divests  no  vested 
right,  but  is  a  power  which  every  legislature  possesses. — 2  Peters, 
523. 

A  court  of  Probates  cannot  legally  appoint  any  other  than  the 
executor  or  administrator  to  sell  the  real  estate  of  the  intestate ; 
and  if  a  sale  be  made  by  a  stranger,  pursuant  to  a  decree  of  pro- 
bate, his  account  for  commissions  and  expenses  cannot  be  allowed. 
4  Day,  137;  12  Mass.  503. 

§  4.  In  Mississippi,  it  is  enacted,  that  "when  any  executor,  or 
administrator,  shall  discover,  or  believe,  that  the  personal  estate 
of  the  testator  or  intestate  is  insufficient  to  pay  the  debts  of  the 
deceased,  it  shall  be  his  duty,  as  soon  as  may  be,  to  exhibit  on  oath, 
a  just  and  true  account  of  said  personal  estate  and  debts  as  far  as 
he  can  discover  the  same,  to  the  Orphan's  court  of  the  proper 
county,  and  said  court  shall  cause  citation  to  issue,  directing 
all  persons  interested,  &c.  to  appear,  &c.  not  less  than  forty 
days,  after  issuing  the  citation,  to  show  cause  why  so  much  land 
shall  not  be  sold,  as  may  be  sufficient  to  pay  debts,  &c.;  which 
said  citation  shall  be  set  up  in  three  of  the  most  public  places,  &c. 
for  thirty  days,  and  published  in  a  newspaper  the  same  number  of 
days."    How.  &H.  sec.  76,  p.  407.  ;. 

§  5.  A  Surrogate  obtains  jurisdiction  in  reference  to  the  sale  of 
the  real  estate  of  a  testator  or  intestate,  by  the  presentation  of  a 


CH.  XLII.]       ^    EXECR's.  and  ADMr's.  SALES.  ♦   287 

petition  by  the  executors  or  administrators  praying  his  aid;  and 
by  the  exhibition  of  an  account  of  the  personal  estate  and  debts  of 
the  deceased.     10  Wend.  441. 

§  6.  A  general  power  to  sell,  for  payment  of  debts,  given  by 
the  court  of  Probates  to  an  administrator,  authorises  him  to  exe- 
cute such  an  instrument  only,  as  is  legally  proper  for  conveyance 
of  the  estate  to  be  sold.    4  Count.  495. 

To  render  a  sale  by  an  administrator  valid,  the  deed  must  re- 
cite the  order  of  the  court,  and  so  certainly  as  to  be  visibly  in  con- 
formity to  it. — 6  Connt.  373.  The  authority  is  personal,  and  must 
be  strictly  pursued.  Ih.—l  Mass.  488;  3  Stew.  &  Port.  355.— 
Therefore,  where  an  administrator  was  licensed  to  sell  land  to  a 
.certain  amount,  and  sold  the  entire  real  estate,  the  sale  was  hdd 
to  be  void,  though  such  real  estate  was  under  a  mortgage. — 15 
Pick.  23;  6  Connt.  373;  4N.Hamp.l66. 

So,  in  case  of  a  sale  under  a  license  of  court,  those  interested 
in  the  estate  are  not  concluded  by  the  sale,  unless  every  essential 
requisite  of  the  law  in  regard  to  such  sale,  has  been  complied  with. 
7Mass.488;  llib.227;  lHow.558:  lSm.&M.357;  2ib.326.* 

A  power  to  sell  for  payment  of  debts,  does  not  authorise  sale 
for  payment  of  legacies.    2  Dall.  291. 

A  sale  by  an  administrator,  was  held  valid  against  the  heirs, 
though  made  by  virtue  of  a  license  granted  on  a  certificate  of  the 
Judge  of  Probates,  not  authorised  by  the  circumstances,  and  where 
the  administrator  gave  no  bond  as  required  by  the  statute. — 11 
Mass.  227;  7  ib.  292;  5  Pick.  140— But  see  3  Stew.  &  Port.  355. 

A  license  need  not  specify  the  particular  land  to  be  sold. — 3 
N.  Hamp.  30. 

A  sale  made  by  an  administrator,  if  advertised  for  Friday  the 
17th,  when  Friday  was  the  16th,  and  the  mistake  was  not  correct- 
ed till  the  last  publication  made  on  the  day  of  sale — was  held  to 
be  void  on  account  of  the  mistake.     15  Mass.  326. 

But  under  the  statute  of  1783  and  1788,  (in  Massachusetts,)  re- 
lating to  notices  by  executors  and  administrators,  upon  license  to 


*Long  acquiescence  in  the  possession  of  a  purchaser,  with  other  circumstances 
showing  fairness  and  publicity  of  sale,  will  be  sufficient  to  raise  a  presumption, 
that  these  requisites  were  complied  with.    3  Mass.  399;  15  ib.  26. 


288  execr's.  and  admr's.  sales.        [ch.  xlii. 

sell  rfeal  estate,  notices  of  sale  published  three  weeks  successively, 
pursuant  to  order  of  court,  are  sufficient,  though  neither  of  the 
notices  were  published  30  days  before  the  sale.     1  Mass.  247. 

An  administrator  is  not  bound  to  state  in  his  advertisement  the 
terms  of  the  sale,  nor  is  it  unlawful  in  him  to  exact  payment  in 
specie,  or  in  such  bank  notes  as  are  in  best  credit— -16  Mass.  129. 

The  oath  required  by  the  statute  must  precede  the  fixing  of  the 
time  and  place  of  sale,  and  not  only  the  execution  of  the  deed  to 
the  purchaser.--.?  Pick.  111. 

A  sale  made  twelve  years  after  the  order,  was  held  void — 15 
Mass.  326 — No  time  being  fixed  by  statute  for  such  sale,  each  case 
must  depend  on  the  discretion  of  the  court — 6  Halst.  44.  The 
Orphan's  court  may  make  a  second  order  for  the  sale  of  real  estate, 
the  first  being  insufficient  for  the  payment  of  the  debts.    IMd. 

Executors  and  administrators  may  divide  and  sell  the  land  in 
parcels,  though  appraised  entire ;  and  their  deed  will  convey  a 
title  without  report  or  compensation. — 9  Ohio  R.  19;  7  Ham. 
(part  1st)  198. 

They  may,  bona  fide,  adjourn  the  sale,  without  any  statutory 
authority  so  to  do.    15  Mass.  175. 

§  7.  An  administrator  cannot  make  any  contract  for  the  sale  of 
the  lands  of  his  intestate — 1  Bailey,  45 — and  any  contract  made 
before  such  order,  is  void ; — and  even  if  he  afterwards  gets  the 
order,  it  will  not  enure  to  the  benefit  of  his  covenantee. — 3  Cow- 
en,  299;  3  Paige,  154;  4  Mass.  354;  1  ib.  35.  For  the  adminis- 
trator has  no  interest  in  the  land  till  the  order  of  sale  is  made.  lb. 
and  16  Mass,  280;  1  Pick.  157.  And  such  contract  is  also  against 
the  policy  of  the  act  authorising  administrators  to  sell  land. — 3 
Paige,  154. 

The  cases  which  hold  that  where  one  conveys  without  title, 
and  afterwards  becomes  the  owner,  this  shall  enure  to  the  benefit 
of  the  grantee,  means  that  the  grantor  shall  acquire  a  beneficial 
interest  and  not  a  mere  authority  to  sell.    3  Paige,  154.* 


♦Lands  may  be  sold  under  a  judgment  against  an  executor  or  administrator, 
but  when  there  is  neither,  a  bill  will  lie  against  the  heir — for  the  proceeds  of 
land  sold  by  him,  the  personalty  being  exhausted. — 2M'Cord'8  So.Car.  Ch.R. 
514 — sed  quere? 


GH.  XLII.]  EXECR's.  and  ADMR's.  SALES.  289 

§  8.  An  administrator  cannot  sell  the  real  estate  of  his  intes- 
tate for  payment  of  debts,  unless  his  intestate  died  seized  of  it,  or 
had  fraudulently  conveyed  it  away,  or  was  colorably  or  fraudu- 
lently disseized  of  it.    5  Mass.  240;  4  ib.  354. 

A  sale  of  land  adversely  held,  is  champertous  and  void  in  e- 
quity--9  Yerg.  301;  3  S.  &  R.  473--Nor  should  a  sale  be  made  by 
an  administrator  of  land,  while  a  cloud  rests  on  the  title.  9  Yer- 
ger,  301. 

But  if  the  executor  be  a  son  and  heir  of  the  testator,  he  may,, 
pass  the  title,  as  such  heir,  to  lands  of  which  the  testator  was  dis- 
seized.    10  Mass.  131;  16  ib.  172;  5  Pick.  337. 

And  the  authority  of  an  executor  or  administrator  to  sell  the 
land  of  his  testator  or  intestate,  by  law  liable  to  such  sale,  for  pay- 
ment of  debts,  is  not  taken  away,  by  the  disseizin  of,  descent 
from,  or  alienation  by  the  heirs  or  the  devisees,  4  Mass.  354;  5 
ib.  240;  3  ib.  523— So,  in  N.  Jersey--1  Halst.44;  6  ib.  1. 

But  a  repeal  of  the  law  authorising  sale  of  land  by  administra- 
tors, for  payment  of  debts,  would  take  away  his  authority — 3  Ham., 
579.  Neither  the  interest  of  the  personal  representatives  or  cred- 
itors is  such  as  to  prevent  the  Legislature  from  repealing  laws  au- 
thorising such  sales.     Ibid. 

§  9.  Where  a  testator  directed  his  debts  to  be  paid,  and  made 
a  specific  devise  of  certain  land,  and  gave  over  the  residuum,  and 
died  seized  of  real  estate  acquired  after  making  the  will,  and  which 
did  not  pass  thereby — upon  the  application  of  executors  for  li- 
cense to  sell  real  estate  for  the  payment  of  debts,  it  was  held,  that 
the  lands  not  included  in  the  specific  devise,  and  which  would 
otherwise  fall  into  the  residuum,  should  first  be  sold,  and  next  the 
after  acquired  lands.    6  Mass.  149. 

§  10.  An  administrator  selling  real  estate  under  an  order  of 
court,  may  convey  to  the  assignee  of  the  original  purchaser. — 7 
Ham.  (part  1st)  198. 

The  authority  of  an  administrator  to  convey  land  must  appear 
on  the  deed  of  conveyance  with  such  certainty,  that  the  act  done 
shall  be  clearly  in  pursuance  of  the  authority  given. — 6  Connt 
373.  Therefore  where  a  grantor  described  himself  in  a  deed  as 
administrator,  and  referred  to  an  order  of  the  court  of  Probates  a9 
37 


290  execr's.  and  admr's.  sales.        [ch.  xlii. 

the  source  of  his  authority,  and  then  granted  the  estate  with  a  cov- 
enant that  he  was  seized  as  administrator  and  other  covenants,  it 
was  held,  that  such  deed  was  ineffectual  to  convey  the  estate,  and 
that  the  defect  could  not  be  supplied  by  recurrence  to  the  Pro- 
bate records.     Ibid. 

But  it  is  not  necessary  to  specify  in  such  deed  the  ground  on 
which  the  court  of  Probate  proceeded,  in  making  the  order  of 
sale,  although  the  legal  necessity  of  the  sale  must  appear  on  the 
face  of  the  order.     10  Conn.  77. 

An  administrator's  deed  need  not  recite  that  the  sale  was  at 
auction,  nor  that  the  grantee  was  the  highest  bidder ;  nor  need  it 
be  signed  by  the  administrator,  if  the  capacity  in  which  he  con- 
veys appears  in  any  other  part  of  the  deed.     3  N.  Hamp.  30. 

§  11.  A  deed  by  an  administrator,  under  a  Probate  order  of 
sale  for  the  payment  of  debts,  must  be  adapted  to  convey  the  es- 
tate, which  is  the  subject  matter  of  the  power — 6  Connt.  258. — 
Therefore,  where  an  administrator  reciting  his  power  under  an 
order  of  Probate,  naming  himself  as  administrator,  and  signing 
with  that  addition  to  his  name,  executed  a  quit  claim  deed,  re- 
leasing his  right  and  title  to  the  premises,  described  by  metes  and 
bounds,  as  being  the  same  of  which  the  intestate  was  seized  and 
possessed  at  his  decease — it  was  held,  that  the  administrator  had 
himself  no  interest  in  the  land,  and  that  such  deed  was  inopera- 
tive.— Ibid.  A  sale  by  an  administrator  only  vests  in  the  pur- 
chaser the  title  of  his  intestate.    6  Halst.  44, 

And  where  one  selling  described  himself  administrator  of  the 
intestate,  stated  his  power  to  sell  as  derived  from  the  court  for  that 
purpose,  and  signed  the  deed  with  the  addition  of  administrator 
to  his  name,  and  covenanted  therein  as  follows — "I  the  said  grant- 
or, do  for  myself,  my  heirs,  executors  and  administrators,  cove- 
nant with  the  said  grantee,  his  heirs  and  assigns,  that  I  am  well 
seized,"  &c. — held,  by  such  covenant  the  grantor  was  'personally 
liable.    4  Connt.  495. 

And  where  land  was  held  by  C,  the  heirs  of  A.  and  the  heirs 
of  B.,  in  equal  proportions,  and  the  administrator  of  A.'s  estate 
acting  as  such,  under  a  general  order  of  sale  for  payment  of  debts, 
and  in  possession  of  the  land  described,  covenanted  in  a  deed 


OH.  XLII.]  EXECR's.  and  ADMR's.  SALES.  291 

that  he  was  well  seized  of  the  premises  in  fee  simple,  and  had 
good  right  to  sell  the  same ;" — and  the  deed  purported  to  convey 
by  metes  and  bounds  a  part  only  of  the  land  so  held  in  common — 
held,  no  title  passed,  the  grantor  having  power  legally  to  convey 
an  undivided  portion  of  the  whole  estate  held  in  common,  and 
that  therefore  the  covenants  were  broken  instantly  on  the  execu- 
tion of  the  deed. — 4  Connt.  405.— -Such  sale  is  judicial,  and  the 

maxim,  caveat  emptor,  applies.  3  Watts,  490;  3  Watts  &  S. 
444* 

In  an  action  on  a  bond  given  by  a  purchaser  at  such  sale,  for 
part  of  the  purchase  money,  the  defendant  cannot  allege  a  defect 
of  the  title  as  a  defence.     3  Watts,  490. 

And  a  representation  made  by  an  administrator,  touching  the 
character  of  the  land  of  his  intestate,  made,  previously  to  a  sale 
thereof,  by  order  of  the  Orphan's  court,  will  not  authorise  the  pur- 
chaser to  resist  the  payment  of  the  purchase  money,  in  the  ab- 
sence of  fraud.    6  Watts,  148. 

§  12.  Where  a  testator  directed  his  lands  to  be  sold,  and  the 
executor  sold  accordingly,  the  will  being  lost — Held:  the  execu- 
tor had  a  right  to  resort  to  Chancery,  to  have  trespassers  removed, 
to  enable  him  to  convey  title  and  deliver  possession.  3  Humph. 
347. 

Where  the  administrator  or  trustee  cannot  perform  the  duties 
imposed  by  the  will  without  having  the  legal  title  to  the  proper- 
ty, he  will  be  considered  as  taking  the  title.  9  Shepley's  R.  (22 
Maine  R.)  257--Bost.  Law.  Repr.  June,  1845. 

§  13.  In  South-Carolina,  purchases  by  an  executor,  at  his  own 
sale,  are  void,  and  voidable  in  the  hands  of  a  purchaser  from  him, 
with  notice  express  or  implied-—!  M'Cord's  Ch.  R.  252 — for  an 
administrator  is  trustee-.-2  Halst.  185 — and  as  such  cannot  spec- 
ulate for  his  own  profit — Coxe,  26;  6  Hgjst.  145;  3  Harris.  74. — 
(The  rule  is  the  same  in  N.  Jersey. — lb.)    And  a  deed  of  an  ex- 


♦If  administrator  selling,  by  leave,  lands  of  his  intestate,  take  a  mortgage  for 
the  security  of  the  purchase  money,  on  foreclosure,  the  title  to  the  mortgaged 
property  vests  in  him  individually,  and  not  as  administrator,  so  that  his  subseouent 
deed  will  convey  his  individual  title,  and  their  covenants  bind  him  in  his  inaivid- 
ual  capacity — and  this  though  in  the  mortgage  and  deed  he  be  described  as  ad- 
ministrator.    1  Chip.  409. 


292  execr's.  and  admr's.  sales.         [ch.  XLlt^ 

ecutor  (empowered  to  sell  real  estate  by  will,)  to  a  third  person 
for  the  purpose  and  with  the  intent  of  such  third  person  recon- 
veying  it  to  the  executor,  is  voidable  by  the  cestuys  que  trust,  or 
their  heirs.    6  Halst.  385;  3  Iredell,  516. 

So,  (in  S.  Carolina,)  where  an  executor,  who  was  also  legatee, 
purchased  at  his  own  sale  made  under  an  order  of  the  Ordinary, 
and  appointed  an  agent  to  sell  and  another  to  buy — his  purchas- 
es were  set  aside  by  Chancellor  Johnston,  on  the  general  princi- 
ple, that  for  the  prevention  of  fraud,  a  trustee  to  sell  shall  not  be 
permitted  to  buy  at  his  own  sale;  and  if  he  does,  his  purchase 
may  be  confirmed  or  set  aside  at  the  option  of  the  parties  inter- 
ested— 2  Hill's  Ch.  R.  434 — and  if  for  less  than  the  appraised 
value,  the  administrator  shall  account  for  the  difference  between 
his  bid  and  the  real  value,  and  a  re-sale  shall  be  ordered— -76. — 
and  if  more  is  bid  than  at  the  former  sale,  it  shall  go  to  the  high- 
est bidder;  if  not,  the  first  sale  is  affirmed.— -76.  436 — See  also  2 
Bailey,  480;  7  Pick.  1;  15  ib.  23;  5  ib.  519.  And  if  the  heirs 
elect  to  consider  him  trustee,  they  must  do  so,  not  only  for  lands 
resold  by  him,  but  for  those  not  resold.     10  Pick.  77. 

In  the  case  of  6  Halsted,  385,  above  cited,  it  is  said,  the  expres- 
sion in  2d  Halsted  that  such  sales  are  void,  is  too  strong — such 
sales  are  voidable,  not  void.  They  may  become  valid  by  the  ac- 
quiescence of  the  heirs.  Third  persons  cannot  question  them. 
Neither  could  the  executor,  nor  any  person  claiming  under  him. 
Ibid.  A  person  having  a  right  to  impeach  it,  may  urge  his  ob- 
jection in  an  action  of  ejectment.     Ibid. 

So,  in  Ohio,  an  executor  cannot  purchase  at  his  co-executor's 
sale,  but  the  subsequent  assent  of  the  heirs  will  make  his  pur- 
chase good.     10  Ohio  R.  117. 

In  North-Carolina,  an  executor  can  purchase  goods  of  a  testator 
at  his  sale — 2  Dever.  19 — But  see  3  Iredell,  516,  where  it  is  said — 
If  an  executor  or  administrator  at  his  own  sale,  procure  an  agent 
to  buy  for  him  any  part  of  his  testator's  or  intestate's  property, 
and  then  to  reconvey  it  to  him,  he  shall  account  for  the  full  value 
of  such  property,  or  for  such  higher  price  as  he  subsequently  ob- 
tained for  it,  beyond  the  amount  bid  by  his  agent. 

In  Pennsylvania,  an  executor  or  administrator  cannot  purchase 
the  land  of  his  intestate  sold  by  order  of  the  Orphan's  court— -2 


CH.  XLII.]  EXECR's.  and  ADMr's.  SALES.  293 

Yeates,  117;  1  Ash.  307;  2  Rawle,  392.  But  such  a  sale  is  not 
void,  but  voidable.  It  may  be  ratified  by  those  entitled  to  call  it 
in  question ; — but  a  ratification  by  the  heirs  and  devisees,  will  not 
prevent  the  creditors  of  the  deceased  from  taking  the  land  in  ex- 
ecution as  his  estate.     2  Rawle,  392 — See  also  2  Miles,  383. 

If  the  administrator  has  purchased  at  a  price  below  the  value 
of  the  estate,  and  sold  to  a  third  person  without  notice,  the  court 
will  order  him  to  pay  to  the  estate  the  difference  between  the 
price  paid  by  him  and  its  estimated  value.  1  Ash.  307 — see  also 
2  Binney,  294,  &  2  S.  &  R.  621;  6  Har.  &  John.  67;  5  N.  Hamp. 
492;  2  ib.  218;  4  Gill.  &  John.  376;  2  Root,  473. 

Where  real  estate  of  an  intestate  was  ordered  by  the  legislature 
of  Rhode-Island  to  be  sold,  by  a  person  appointed  by  the  legisla- 
ture, for  payment  of  the  intestate's  debts,  the  general  administia- 
tor  on  the  estate  may  be  a  purchaser  at  the  sale.    2  Mason,  531. 

And  if  property  of  a  decedent  be  sold  by  order  of  court,  and  by 
the  sheriff  or  other  public  officer,  the  executor  may  purchase  it 
for  less  than  its  value,  if  he  can ;  but  if  not  by  order  of  the  court 
and  the  sheriif,  he  shall  answer  for  its  full  value — 2  Hayw.  461 — 
So,  if  under  execution  against  the  intestate  by  the  sheriif. — 2 
Halst.  180. 

In  Mississippi,  it  has  been  decided  that  the  purchase  of  proper- 
ty by  an  administrator  at  his  own  sale,  is  voidable — 1  Sm.  &  M. 
208 — whether  absolutely  void,  the  court,  in  this  case,  did  not 
think  it  necessary  to  determine. 

§  14.  The  Probate  court  may  vacate  a  sale  for  fraud,  made  un- 
der its  direction,  when  application  is  made  at  the  terra,  to  which 
a  report  of  the  sale  is  made.    3  Sm.  &  M.  302. 

And  although  when  an  order  of  sale  has  been  made,  it  seems, 
the  question  of  its  propriety  or  authority,  should  be  closed — 2  Sm. 
&  M.  326.  Yet  a  sale  is  not  final,  till  reported  to  the  court,  and 
there  is  a  judgment  of  the  court  ratifying  it.     Ibid. 

§  15.  The  Legislature  may  also  order  a  sale  of  real  estate.  The 
Legislature  regulates  descents  and  conveyances  of  real  estate,  and 
to  define  the  rights  of  creditor  and  debtor  is  their  common  duty, 
and  the  whole  range  of  remedies  lies  within  their  province.  16 
Peters,  25. 


SOi  execr's.  and  admr's.  sales.        [ch.  xlii. 

And  where  a  sale  of  the  property  of  an  intestate  is  made  by 
authority  of  an  act  of  the  Legislature,  the  terms  must  be  strictly 
complied  with,  or  the  sale  will  be  void. — 3  Sm.  &  M.  715.  If 
regular,  the  sale  will  be  good.     Ihid. 

If  the  act  required  the  administrator  to  give  a  bond  conditioned 
"to  vest  the  proceeds  in  other  property,"  an  omission  to  give  such 
bond  will  make  the  sale  void. — Ibid.  A  purchaser  thereat  will 
be  regarded  as  trustee  for  the  heir;  and  a  purchaser,  without  no- 
tice, from  the  first  purchaser,  will  be  regarded  in  the  same  light. 
Ibid. 

§  16.  In  Mississippi,  it  is  further  provided,  that  "when  the  es- 
tate of  any  deceased  person,  or  the  property  of  any  minor  or  mi- 
nors, shall  consist  of  lands  or  other  real  estate,  and  slaves  or  other 
personal  property,  and  the  Probate  court  of  the  proper  county 
shall  be  of  opinion  that  the  interest  of  the  said  estate,  or  the  said 
minor  or  minors,  will  be  promoted  by  the  sale  of  the  lands  or  oth- 
er real  estate  in  preference  of  the  slaves,  or  other  personal  proper- 
ty, the  said  court  may,  at  its  discretion,  order  the  sale  of  said  lands 
and  other  real  estate,  instead  of  the  slaves  and  other  personal 
property,  on  such  credit,  not  exceeding  four  years,  as  the  said 
court  may  be  of  opinion,  will  best  promote  the  interest  of  the  said 
minor  or  minors,  the  purchaser  giving  bond  and  security,  as  re- 
quired in  other  cases  of  the  sale  of  property  of  deceased  persons." 
How.  &  H.  p.  417,  act  of  1829.  As  to  right  of  the  Legislature 
to  subject  land  instead  of  personal  estate,  see  16  Peters,  25,  and 
preceding  section. 

§  17.  And  it  is  further  enacted,  that  "where  land,  tenements, 
and  hereditaments,  shall  descend  from  a  person  dying  intestate, 
and  an  equal  division  thereof  cannot  conveniently  be  made,  it 
shall  be  lawful  for  the  (court  of  Chancery,*  or)  Orphan's  court" 
(now  court  of  Probates,)  "of  the  county  by  which  the  administra- 
tion of  the  estate  of  the  intestate  was  granted,  to  direct  the  sale  of 
such  lands,  tenements  or  hereditaments,  and  the  distribution  of 
the  money  arising  therefrom,  according  to  the  rights  of  each 
claimant."     How.&  H.  409,  act  of  1821. 


♦Repealed  by  Constitution  of  1832 — because  ample  jurisdiction  is  thereby  con- 
ferred on  the  Court  of  Probates — and  Chancerv  cannot  interfere. 


CH.  XLII.]  EXECR*S.  AND  ADMR's.  SALES.  S9S 

§  18.  And  "when  hereafter  any  executor,  administrator  or 
guardian,  or  other  person  interested  in  the  lands,  tenements,  and 
hereditaments  of  any  person  deceased,  shall  suggest  to  the  Pro- 
bate court  of  any  county  in  this  State,  that  it  will  be  for  the  inter- 
est of  the  devisees,  heirs,  or  other  legal  representatives  of  any  such 
decedent,  to  sell  the  whole  or  any  part  of  such  lands,  tenement* 
or  hereditaments,  and  shall  make  application  to  any  such  Probate 
court  to  order  the  sale  of  the  same,  it  shall  be  the  duty  of  such 
court,  forthwith,  to  issue  a  citation,  directing  all  persons  in  any 
manner  interested  in  said  lands,  tenements  or  hereditaments,  to 
appear  before  said  court,  at  a  day  to  be  named,  not  less  than  sixtif 
days  after  the  time  of  issuing  such  citation — to  show  cause  why 
such  lands,  tenements  and  hereditaments,  should  not  be  sold  ;— 
and  it  shall  be  the  duty  of  the  executor,  administrator  or  guardian, 
or  other  person  making  such  application,  to  advertise  in  two  of  the 
most  public  newspapers  printed  in  the  State,  for  a  period  of  six 
successive  weeks,  a  notice  to  all  persons  interested  in  such  lands, 
tenements  and  hereditaments,  specifying  the  same  particularly  in 
said  notice,  to  appear  at  the  court  at  which  such  citation  is  re- 
turnable,  to  show  cause,  if  any  they  can,  why  said  lands,  tene- 
ments and  hereditaments,  shall  not  be  sold.  And  upon  the  return 
of  such  citation  executed,  if  the  parties  to  whom  it  is  directed 
reside  in  the  State,  or  upon  proof  of  such  publication  as  aforesaid, 
the  said  court  is  hereby  authorised  and  empowered,  if  they  shall 
be  satisfied  from  all  the  proofs  exhibited,  that  the  interest  of  the 
heirs,  devisees,  or  other  persons  interested  in  such,  tenements 
and  hereditaments,  will  be  promoted  by  selling  the  same,  to  order 
the  same  to  be  sold  on  such  credits  and  terms,  as  they  shall  deem 
most  advantageous  to  those  interested — Provided,  however,  that 
no  such  lands,  tenements  and  hereditaments,  shall  be  sold  on  a 
credit  for  a  shorter  time  than  twelve  months."  Act,  1830 — How. 
&  H.  418. 

The  said  eourt,  at  the  time  of  ordering  the  sale  of  any  such 
lands,  tenements  and  hereditaments,  as  aforesaid,  shall  take  boTid 
with  good  and  sufficient  security,  from  the  executor,  administra- 
tor, guardian,  or  other  person  petitioning  for  any  such  sale,  in  a 
sufficient  penalty,  conditioned  to  apply  the  proceeds  of  said  sale 
in  the  same  way  the  lands,  tenements,  or  hereditaments,  would 


3t6  execr's.  and  admr's.  sales.        [ch.  xlii. 

have  descended,  been  applied  or  appropriated,  if  no  such  order 
of  sale  had  been  made.    Ibid.  419. 

§  19.  Another  instance,  in  which  the  interest  of  an  intestate 
may  be  sold  by  order  of  the  court  of  Probates,  is  where  lands  had 
been  entered  prior  to  the  year  1827,  under  the  laws  of  Congress, 
allowing  the  purchase  money  to  be  made  in  instalments — and  the 
purchaser  died  before  all  the  instalments  were  discharged.  In 
such  case,  if  "  it  shall  appear  to  the  satisfaction  of  the  Probate 
CQurt,  that  the  said  lands  cannot  be  relinquished" — (according  to 
the  provisions  of  the  several  acts  of  Congress,  relative  to  the  re- 
lief of  purchasers  of  public  lands) — "without  injury  to  the  estate, 
the  said  court  might  direct  the  same  to  be  sold."  How.  &  H. 
p.  417. 

The  occasion  which  gave  birth  to  this  provision,  having  long 
ceased  to  exist,  the  provision  itself  may  be  considered  obsolete. 

§  20.  But  another  instance  of  frequent  occurrence,  is  "  where 
land,  tenements  and  hereditaments  descend  from  a  person  dying 
intestate,  and  an  equal  division  thereof  cannot  conveniently  be 
made" — in  which  case,  it  is  provided,  that  "  it  shall  be  lawful  for 
the  Orphan's  court  (court  of  Probates)  of  the  county  by  which  the 
administration  to  the  estate  of  the  intestate  was  granted,  to  direct 
the  sale  of  such  lands,  tenements  or  hereditaments,  and  the  dis- 
tribution of  the  money  arising  therefrom,  according  to  the  rights 
of  each  claimant."     Act,  1821— How.  &  H.  409. 

By  another  law,  the  land  of  minors  may  be  sold — How.  &  H 
338 — which  will  be  treated  of  under  the  title  of  "Guardian  and 
Ward,"  post. — So,  of  law  respecting  sale  of  land  belonging  to  lu- 
natics and  idiots. 

Another  law  authorises  Probate  court  to  sell  land  held  in 
joint-tenancy,  of  which  an  equal  division  cannot  be  made. — 
How.&H.  420.  The  subject  of  this  act  will  more  properly  fall 
under  another  head. 

§  21.  In  reference  to  the  sale  of  real  estate  for  payment  of  debts 
of  intestate,  when  the  personal  estate  is  insufficient — (see  ante, 
sec.  4,  p.  286) — it  is  further  provided,  that — 

"  The  Probate  court,  shall  at  the  time  specified  in  the  said  cita- 
tation,  or  at  such  other  time  as  it  may  theft  appoint,  hear  and  ex- 
amine the  allegations  and  proofs  of  the  said  executor  or  adminis' 


CH.  XLII.]  EXECR's.  and  ADMr's.  SALES.  297 

trator,  and  of  other  persons  interested.  And  if  the  said  court,  in 
such  examination,  shall  find  that  the  personal  estate  of  such  tes- 
tator or  intestate  is  not  sufficient  to  pay  his  or  her  debts,  the  said 
court  shall  order  and  direct  the  administrator  or  executor  to  sell 
the  whole,  if  necessary,  of  the  lands,  tenements  or  hereditaments, 
for  the  payment  of  his  or  her  debts,  or  so  much  thereof  as  will  be 
sufficient  for  that  purpose — and,  when  a  part  only,  the  said  order 
shall  specify  that  part — Provided,  that  when  any  houses,  lots,  or 
lands,  are  so  situated  or  circumstanced,  that  a  part  thereof  cannot 
be  sold  without  manifest  prejudice  to  the  heirs,  or  devisees,  the 
said  court  may,  at  its  discretion,  order  the  whole  to  be  sold,  and 
the  overplus,  arising  from  such  sale,  shall  be  distributed  among 
the  heirs  or  devisees,  according  to  the  law  of  descents  in  the  for- 
mer and  the  will  in  the  latter  case; — and  the  heir  or  devisee, 
whose  lands,  tenements,  or  hereditaments,  so  descending  or  de- 
vised, shall  be  sold  as  aforesaid,  for  the  payment  of  the  debts  of 
the  testator  or  intestate,  may  compel  all  others  claiming  or  hold- 
ing under  such  intestate  or  testator,  to  contribute  in  proportion 
to  their  respective  interests.  How.  &  H.  p.  408 — Act,  1821 — 
See  sec.  27,  p.  299. 

§  22.  Any  executor  or  administrator,  who  may  be  ordered  to 
sell  the  lands,  tenements,  or  hereditaments,  of  any  testator  or  in- 
testate, shall  give  notice,  by  advertisements,  put  up  at  three  or 
more  public  places  in  the  county  where  such  lands,  tenements  or 
hereditaments  are  situate,  of  the  time  and  place  of  selling  the 
same,  at  least  forty  days  before  the  time  of  sale,  and  by  publish- 
ing such  advertisements  in  one  of  the  public  newspapers  of  this 
State,  for  three  weeks  successively  before  such  days  of  sale ; — and 
shall,  at  the  time  and  place  appointed,  set  up  the  said  lands,  ten- 
ements and  hereditaments,  for  sale,  at  public  vendue,  upon  a  cre- 
dit of  twelve  months  from  the  day  of  sale — and  strike  off  the  same 
to  the  highest  bidder,  who  shall  give  bond,  with  satisfactory  se- 
curity, for  the  amount  thereof; — and  the  executor  or  administra- 
tor making  such  sale,  shall  make  report  in  writing,  of  all  the  pro- 
ceedings thereon,  to  the  next  Probate  court  after  such  sale — 
Provided,  that  such  executor  or  administrator  may  adjourn  the 
said  sale  from  time  to  time,  not  exceeding /orty  days  in  the  whole. 
How.  &  H.  408— Acts,  1821— (See  sec.  27,  p.  299.) 
38 


298  execr's.  and  admr's.  sales.        [oh.  .xui, 

§  23.  "The  said  executor  or  administrator  shall,  arid  is  hereby 
authorised  to  make  a  deed  or  deeds  to  the  purchaser,  or  purchasr 
ers,  to  the  lands,  tenements  and  hereditaments  so  sold — :which 
deed  or  deeds  shall  vest  in  such  purchaser  or  purchasers  as  good 
and  perfect  an  estate  in  the  premises  therein  mentioned,  as  the 
heirs  or  devisees  of  such  testator  or  intestate,  were  seized  of,  or 
entitled  to,  at  the  time  of  making  the  said  order  of  sale,  by  the 
said  Probate  court."    How.  &  H.  409 — See  ante  sec.  11,  p.  290. 

§  24.  "When  any  real  or  personal  property,  or  both,  of  any  de- 
ceased person,  or  of  any  minor,  shall  be  sold  by  order  of  any  court 
of  Probate,  on  a  credit,  the  property  shall  be  held,  and  remain 
subject  arid  liable  to  the  payment  of  the  sum  or  sums  for  which 
it  was  sold,  and  the  interest  and  costs  accruing  thereon,  in  pre- 
ference of  any  other  claim  or  claims  against  the  purchaser  of  such 
property,  or  the  assignee  of  such  purchaser,  and  shall  be  liable  to 
the  payment  thereof,  in  the  same  manner  as  if  a  mortgage  had 
been  taken  on  the  said  property  to  secure  the  payment  thereof, 
any  law,  usage,  or  custom  to  the  contrary  notwithstanding."  lb. 
417— See  sec.  29  &  30,  p.  300. 

§  25.  "  No  executor  or  administrator  shall  require  any  bond  or 
note,  payable  at  the  Bank  of  the  State  of  Mississippi,  or  any  other 
Bank  in  said  State,  for  property  belonging  to  the  estate  of  any 
testator  or  intestate  which  such  executor  or  administrator  may 
sell  at  public  sale  by  order  of  the  Probate  court."  IMd.  414 — 
Act  1821— See  sec.  6,  p.  288. 

§  26.  "  No  sale  by  an  executor  or  administrator  shall  commence 
before  the  hour  of  twelve  o'clock  on  the  day  appointed  for  the 
same,  nor  continue  longer  than  the  hour  of  Jive  o'clock  of  the 
same  day.  But  in  case  that  time  shall  be  insufficient  to  complete 
jthe  sale  of  such  estate,  the  executor  or  administrator  may  contin- 
ue the  sale  from  day  to  day,  until  the  whole  of  the  estate  ordered 
to  be  sold  is  disposed  of,  by  giving  public  notice  thereof  to  the 
eittending  company,  at  the  conclusion  of  the  sale  on  each  day — 
and  such  sale  shall  commence  and  end  on  each  day  within  the 
hours  aforesaid ; — and  any  such  sale  which  may  be  conducted  in 
any  other  manner  than  herein  directed,  is  hereby  declared  to  be 
null  and  void.  Ibid.  414 — Acts  1821— See  sec.  6,  p.  288. 
*v 


*v 


e^.'  xm.]        execr's.  and  admr's.  sales.  299 

§  27.  Administrators  are  prohibited  by  statute  from  selling  the 
property  of  their  intestates  in  any  other  manner  than  at  public 
sale — 1  How.  559.  The  acts  of  administrators  are  only  legal  sd 
far  as  they  are  in  pursuance  of  \8iw.-—lbid.  And  a  vendee  does 
not  acquire  any  right  to  property  sold  by  an  administrator  at  pri- 
vate sale. — Ibid.  But  where  the  administrator,  in  right  of  his 
wife,  had  an  interest  in  the  property  sold,  a  vendee  would  acquire 
a  right  to  that  extent. — Ibid. — See  also  2  How.  822;  and  6  How.- 
106 — and  see  sec.  6,  p.  287. 

The  decree  of  the  Probate  court  without  notice,  actual  or  con- 
structive, to  the  heirs,  is  void,  and  inoperative.  Such  decree  is 
not  only  against  the  express  provisions  of  the  statute,  but  oppos- 
ed to  the  first  principles  of  justice.  Without  citation  or  notice, 
the  court  had  no  jurisdiction  of  the  person ;  and  without  jurisdic- 
tion as  well  of  the  person  as  of  the  subject,  the  judgment  of  a; 
court  is  void,  and  may  be  collaterally  assailed.  6  How.  114,  cit- 
ing 4  Pet.  474;  11  Wend.  652;  2  Stew.  (Ala.)  R.  335,  and  3  J.  J. 
Marshall,  105.  In  such  case  the  title,  by  law,  continues  in  the 
heirs.    Ibid. — 6  Sm.  &  M. 

If  an  administrator  sell  the  land  of  his  intestate  under  an  order 
of  the  Probate  court,  when  the  record  does  not  show  that  legal 
notice  had  been  given  to  the  heirs  at  law,  both  the  order  and  sale 
are  void. — 1  Sm.  &  M.  351.  Any  sale  of  the  real  estate  of  dece- 
dents must  be  made  in  strict  compliance  with  the  law,  or  it  will 
be  void.-/6.— &  see  2  Sm.  &  M.  326— See  sec. 6,  p. 287-8,  ante. 

§  28.  A  sale  by  an  administrator,  unless  for  the  purpose  oi 
paying  debts,  or  enabling  him  to  make  distribution,  is  absolutely 
void.  In  such  case  the  vendee  of  the  administrator,  with  notice, 
would  be  compelled  to  yield  the  property  purchased,  to  the  right 
of  the  distributees.  (But  if  a  purchaser  without  notice,  quere  ?) 
A  court  of  Chancery  in  such  case  has  jurisdiction  to  enforce  the 
right  of  the  distributees,  the  court  of  Probate  having  no  jurisdic- 
tion from  the  character  of  the  party.  Aliter,  if  the  administrator 
were  the  only  party.  1  Sm.  &  M.  208;  Ibid.  221— See  sec.  6,  p. 
287-8,  ante.* 


*A  power  to  sell  at  auction  is  executed  where  the  property  is  advertised  for  sale, 
and  an  offer  being  made  by  letter,  it  is  subsequently  put  up,  and  no  one  bidding 


300  execr's.  and  admr's.  sales.        [ch.  xlii. 

An  order  to  sell  lands  of  the  intestate,  except  certain  land  of  a 
specific  character,  will  not  justify  a  sale  of  land  of  the  order  ex- 
cepted.   4  Ham.  5. 

§  29.  Under  the  act,  (sec.  24,  p.  298,  ante,)  real  and  personal 
property,  sold  by  order  of  a  court  of  Probate  will  remain,  whether 
in  the  possession  of  the  purchaser  or  his  assignee,  bound  for  the 
purchase-money  as  if  specially  mortgaged  therefor;  and  the  lien 
thus  created,  is  considered  as  if  recorded,  and  therefore  construc- 
tive notice  to  third  persons. — 2  Sm.  &  M.  687.  So,  if  the  admin- 
istrator himself  be  the  purchaser.     1  lb.  208,  221. 

But,  it  has  been  decided  elsewhere,  that  if  an  administrator 
selling,  by  leave,  lands  of  his  intestate,  for  the  security  of  the  pur- 
chase-money take  a  mortgage — on  foreclosure,  the  title  of  the 
mortgaged  premises,  vests  in  him  in  his  individual,  not  his  offi- 
cial capacity,  so  that  his  subsequent  deed  will  convey  his  indi- 
vidual title,  and  their  covenants  bind  him  in  his  individual  ca- 
pacity— although  in  such  mortgage  and  deed  he  be  described  as 
adminstrator.     1  Chip.  409. 

The  statutory  lien  cannot  be  discharged  by  any  act  of  the  ad- 
ministrator, other  than  receipt  of  the  money.  1  Sm.  &  M.  C.  R. 
172. 

An  administrator  is  always  presumed  to  have  received  the  pro- 
ceeds of  real  estate  sold  by  him,  unless  he  show  the  contrary. — 3 
Sm.  &  M.  473.  He  will  not  be  liable  beyond  the  amount  receiv- 
ed, provided  he  took  security,  good  at  the  time,  and  the  loss  was 
unavoidable.    Ibid.  ^  •    ; 

§  30.  An  administrator  can  substitute  no  other  security  for  the 
bond  and  security  required  by  law.  If  he  take  of  the  purchaser  a 
note  executed  by  a  third  person  and  endorsed  by  the  purchaser, 
and  neglect  to  collect  it,  the  statutory  lien  continues,  and  the  bond 
of  the  purchaser  (which  ought  to  have  been  taken,)  remains  un- 
satisfied.-—! Sm.  &  M.  Ch.R.  172.  Nothing  short  of  an  absolute 
liability  on  the  part  of  the  purchaser,  satisfies  the  law,  which  re- 
quires a  stable  security,  leaving  to  the  administrator  no  discretion, 
except  perhaps  that  of  approving  the  securities  on  the  purchas- 

^ 

so  much,  it  is  afterwaras  conveyed,  according  to  the  offer  in  the  letter.    3  Bibb, 
367.    (^"This  note  should  have  been  appended  to  sec.  7,  p.  288,  aiUe. 


CH.  XLII.]  EXECR's.  and  ADMR's.  SALES.  301 

er's  bond.  The  law  commands  but  one  mode,  (and  that  excludes 
all  others,)  of  securing  the  purchase  money,  and  a  discretion  in 
the  administrator  to  select  any  other  mode  would  prove  extreme- 
ly hazardous  to  the  interest  of  all  concerned  in  the  estates  of  de- 
ceased persons.    Ibid. 

Hence,  an  executor  or  administrator,  who  sells  the  property 
of  his  intestate  and  takes  insufficient  security  for  the  purchase, 
is  liable  for  the  amount  lost  thereby,  if  he  do  so  from  bad  faith, 
and  not  otherwise. — 1  Sm.  &  M.  508.  If,  however,  he  took  no 
security  at  all,  there  would  be  no  question  about  good  or  bad  faith, 
and  he  should  be  rendered  liable  at  all  events,  for  he  was  not 
bound  to  make  a  deed  or  deliver  the  property  without  requiring 
a  compliance  with  the  law  from  the  purchaser ;  and  if  he  does 
so,  it  is  at  his  own  risk,  because  he,  and  not  the  law,  reposed  such 
confidence  in  the  buyer.  In  such  case,  the  law  presumes  neglect 
or  bad  faith,  either  of  which  is  a  breach  of  an  executor's  or  admin- 
istrator's bond.    See  3  Sm.  &  M.  473. 

§  31.  For  the  rule  where  two  or  more  executors  are  authorised 
to  sell,  see  ante  pages  166  and  174,  inclusive. 

§  32.  This  chapter  will  close  with  a  few  miscellaneous  exam- 
ples on  the  same  subject,  not  embraced  in  the  foregoing  sections. 

An  executor  who  is  residuary  devisee,  and  gives  bond  for  the 
payment  of  debts  and  legacies,  becomes  absolute  owner  of  the 
real  estate  devised,  and  may  sell  it.     5  Pick.  337. 

An  executor  authorised  by  will,  to  sell  lands,  cannot  make  an 
attorney  to  convey.     Harp.  411 — see  12  Mass.  503. 

A  power  to  two  executors,  to  sell  and  dispose  of  an  estate  in 
such  way  and  manner  as  they  shall  judge  most  beneficial  to  the 
legatees,  will  not  give  one  of  them  alone  a  power  to  sell,  nor  will 
it  authorise  one  or  both,  to  enter  upon  and  occupy  the  estate. — 3 
Day,  384. 

A  license  to  sell  real  estate,  to  pay  a  debt  barred  by  the  special 
statute  of  limitations  respecting  executors  and  administrators,  is 
void. — 5  Pick.  140.  The  administrator  is  bound  to  plead  such 
statute  in  bar  of  a  debt  of  his  intestate.     Ibid. 

Where  a  sale  of  land  by  executors  was  made  for  the  benefit  of 
,one  of  the  executors,  it  was  held  to  be  void.    4  Har.  &  J.  186. 


302  execr's.  and  admr's.  sales.        [ch.  xlii. 

An  administratrix,  having  obtained  a  license  to  sell  the  real  es- 
tate of  her  intestate,  whose  estate  had  been  represented  as  insol- 
vent, employed  an  agent  to  sell  the  estate  at  auction.  The  lands 
brought  less  than  their  value,  and  the  agent  had  become  interest- 
ested  in  the  purchase  of  them.  It  was  held,  that  unless  the  ad- 
ministratrix called  her  agent  to  an  account,  she  would  be  consid- 
ered as  conniving  with  him,  and  would  be  chargeable  in  the  set- 
tlement of  the  account  of  her  administration  with  the  full  value 
of  the  land.    2  N.  Hamp.  225. 

An  executor  purchasing  the  land  of  his  testator,  takes  it  sub- 
ject to  the  execution  of  a  creditor  of  the  estate,  even  though  the 
heirs  have  assented  to  the  sale.    2  Rawle,  392, 

An  administrator  of  an  insolvent  estate,  by  leave,  sold  the  real 
estate  of  his  intestate,  and  accounted  for  the  proceeds.  On  sub- 
sequently discovering  that  he  had  filed  no  bond  in  the  office  be- 
fore the  sale,  he  was  permitted  to  charge  back  the  amount  in  his 
account  and  have  a  new  license  to  sell.  2  Fairfax,  247 — and  see  1 
Connt.  51. 

A  sale  of  an  intestate's  real  estate,  made  by  an  administrator, 
upon  a  joint  application  with  guardians,  not  to  pay  debts,  but  to 
maintain  children  and  improve  the  property,  is  not  valid. — 6 
Ham.  447. 

Where  real  estate  is  devised  to  executors,  with  power  to  sell 
the  same  and  distribute  the  proceeds,  if  they  die  without  convey- 
ing, the  estate  descends  to  the  heirs-at-law,  and  a  conveyance  from 
them  passes  the  estate.    4  Wend.  672. 

Where  an  administrator  had  demands  against  the  intestate,  and 
had  made  advances  to  the  estate  out  of  his  own  funds,  but  had 
rendered  no  account  till  after  the  four  years  had  elapsed,  the  de- 
lay having  been  occasioned  by  an  attempt  to  collect  a  debt  abroad, 
he  was  licensed  to  sell  real  estate,  on  his  application  therefor, 
made  soon  after  the  expiration  of  the  four  years,  the  real  estate 
having  remained  without  conveyance,  or  partition  among  the 
heirs.    2  Pick.  567. 

A  license  to  sell  wasj;efused  where  it  appeared  that  the  only 
debt  due  was  secured  by  a  mortgage,  that  the  mortgagee  was  in 
possession,  that  the  four  years  had  elapsed,  that  there  was  no  judg- 


tSH.  XLIII.]    EXR's.  AND  ADM's.  SALE  OF  PERSONALTY.         303 

merit  for  the  debt,  and  that  the  heirs  offered  to  save  the  adminis- 
trator harmless.     13  Mass.  162. 

If  8Ln  administrator,  under  license  for  that  purpose,  sell  real  es- 
tate of  the  intestate  to  a  certain  amount  for  payment  of  debts, 
and  afterwards  refuse  to  receive  the  purchase-money,  and  to  exe- 
cute deeds  of  the  land  sold,  this  is  mal-administration — to  whiph 
his  administration  bond,  (under  stat.  of  Mass.  1803,)  does  not  ex- 
tend, but  the  remedy  is  by  petition  to  the  Judge  of  Probate  for 
his  removal.     1  Greenl.  139. 

A  covenant  by  an  executor  that  he  conveys  as  executor,  and 
not  otherwise,  does  not  bind  him  individually,  although  it  may 
rjot  be  binding  on  the  estate  of  the  testator.     1  Gall.  37. 


.CHAPTER  XLIII. 

executor's  and  administrator's  sale  of  personalty. 

§  1.  It  shall  not  be  lawful  for  any  executor,  or  administrator,  to 
■take  the  estate  or  any  part  thereof,  of  any  testator  or  intestate,  at 
,the  appraised  value,  or  to  dispose  of  the  same  at  private  sale, .  ex- 
,cept  where  the  same  is  directed  by  the  will  of  t|ie  testator,  or 
provided  for  by  this  act.  But  in  all  cases  where  it  may  be  neces- 
sary to  sell  the  whole  or  any  part  of  the  personal  estate  of  any 
testator  or  intestate,  it  shall  be  the  duty  of  the  executor  or  admin- 
istrator, to  apply  to  the  Probate  court  of  the  proper  county  for  an 
order  of  sale,  and  on  obtaining  the  same,  to  advertise  the  time 
and  place  of  said  sale  in  three  or  more  public  places  in  the  coun- 
ty, at  least  thirty  days  previous  to  the  day  of  sale,  and  then  and 
there  proceed  to  sell  the  same  at  public  sale,  to  the  highest  bid-- 


304      exr's.  and  adm's.  sale  of  personalty,  [ch.  xliii, 

der  giving  at  least  six  months  credit,  the  purchaser  or  purchasers 
giving  bond  with  approved  security.    How.  &  H.  411 — Act  1821. 

§  2.  If  any  executor,  administrator  or  collector,  shall  be  of  opin- 
ion, that  it  would  be  of  advantage  to  the  estate  of  the  testator  or 
intestate,  to  dispose  of  the  crop  growing  at  the  time  of  his  or  her 
decease,  it  shall  be  lawful  for  the  Probate  court  of  the  proper 
county,  on  the  application  of  such  executor,  administrator  or  col- 
lector, to  order  the  sale  of  such  crop,  either  at  public  or  private 
sale,  on  a  credit  of  six  months,  taking  of  the  purchaser  or  pur- 
chasers good  and  sufficient  security  for  the  purchase-money. — 
But  if  the  said  court,  on  hearing,  should  be  of  the  opinion  that 
such  sale  would  not  be  of  advantage,  &c. — (See  ante,  page  267, 
sec.  5.) 

§  3.  Executors,  administrators  and  guardians,  may  sell  for  cash, 
or  consign  for  sale,  the  crop  or  crops  of  cotton  and  corn,  they  may 
have  charge  of,  provided  they  obtain  an  order  from  the  Probate 
court  of  the  proper  county.    How.  &  H.  416 — Act  1826. 

§  4.  When  one  or  more  slaves  shall  descend  from  a  person  dy- 
ing intestate,  and  an  equal  division  cannot  be  made  thereof  in 
kind,  on  account  of  the  nature  of  the  property,  it  shall  be  lawful 
for  the  court  of  Chancery,  or  Probate  court  of  the  proper  county, 
by  which  the  administration  to  the  estate  of  the  intestate  was 
granted,  to  direct  the  sale  of  such  slave  or  slaves,  and  the  distri- 
bution of  the  money  arising  therefrom,  according  to  the  rights  of 
each  claimant — provided  always,  that  each  claimant  shall  be  first 
duly  summoned  to  show  cause,  if  any  he  cari,  against  such  sale. 
How.  &  H.  402— Acts  1821. 

§  5.  Whenever  any  person  shall  have  purchased  land  of  the 
United  States,  and  shall  die  before  the  payment  therefor  shall  be 
completed,  his  or  her  executor  or  administrator  shall  be,  and  he 
is  hereby  authorised  and  empowered,  to  sell  by  order  of  the  Pro- 
bate court  of  the  proper  county,  any  property  belonging  to  the 
estate  of  the  deceased,  giving  public  notice  of  the  time  and  place 
of  said  sale,  and  upon  such  terms  as  shall  be  prescribed  by  the 
said  Probate  court,  and  to  apply  the  proceeds  of  such  sale  to  the 
payment  of  said  land.  Provided  nevertheless,  this  shall  not  ex- 
tend to  cases  where  the  testator  or  testatrix  shall  have  made  prch 


CH.  XLIII.]    EXR's.  and  ADM's.  SALE  OF  PERSONALTY.         305 

vision  for  the  payment  of  such  land,  by  his  or  her  last  will  and 
testament — How.  &  H.  407 — Act  1821 — it  is  provided  that  the 
land  itself  inay  be  sold.     How.  &  H.  407  &  417. 

§  6.  The  manner  and  time  of  conducting  the  sale  of  property 
of  an  intestate,  is  set  forth  in  Sec.  26,  p.  298,  ante — to  which  the 
reader  is  referred. 

The  decisions  of  the  courts  respecting  the  validity  of  sales  of 
real  estate,  are,  for  the  most  part,  applicable  to  sales  of  personalty. 
The  reader  is  therefore  referred  to  the  next  preceding  chapter, 
ending  with  the  30th  section. 

In  conclusion,  will  be  annexed  some  additional  decisions. 

The  power  given  to  the  Probate  court,  to  order  sales  by  an  ex- 
ecutor or  administrator  of  his  testator's  or  intestate's  property,  is 
a  special  power,  and  must  be  strictly  pursued.  1  Sm.  &  Marsh. 
561.  A 

A  particular  statement  of  all  the  administrator's  acts  in  con- 
ducting the  sale,  must  be  contained  in  his  report ;  and  if  not  con- 
formable to  the  statute,  the  sale  will  be  void. — 1  Sm.  &  M.  208, 
172;  2  ib.  326,  527.  And  such  acts  must  cover  all  the  requisi- 
tions of  the  statute,  and  so  appear  in  the  report. — Ibid.  If  the 
administrator  does  not  report,  the  court  may  compel  him.  When 
his  report  is  made,  objections  may  be  made  to  the  legality  of  the 
proceedings.  That  is  the  only  proper  time  for  the  court  to  set 
aside  the  sale  for  illegality.    2  Sm.  &  M.  326. 


39 


306  ADM'rN. — AUTHENTICATION  OF  DEBTS.      [CH.  XLIV. 


CHAPTER  XLIV. 

ADMINISTRATION— -AUTHENTICATION  OF  DEBTS. 

§  1.  No  executor  or  administrator  shall  discharge  any  claims 
against  the  deceased,  (except  at  his  own  risk,)  unless  the  same  be 
allowed  by  the  court,  or  unless  the  same  shall  be  authenticated 
and  proved,  as  is  required  by  law.  (See  How.  &  H.  sect.  69,  p. 
405.) 

JUDGMENT  OR  DECREE. 

I. — 1st.  If  the  claim  against  the  estate  be  a  judgment  or  decree, 
the  evidence  shall  be  "a  short  copy  thereof,  attested,  under  seal, 
by  the  clerk  of  the  court  where  it  was  obtained,  who  shall  certify, 
that  there  is  no  entry  or  proceeding  of  the  court,  to  show  that  said 
judgment  or  decree  has  been  satisfied :" — also,  "  a  certificate  of 
some  peson  authorised  to  administer  an  oath,  endorsed  on  or  an- 
nexed to  a  statement  of  the  debt  due  on  such  judgment  or  decree, 
that  the  creditor,  since  the  death  of  the  deceased,  has  taken  before 
him  the  following  oath,  viz: — "That  he  (or  she)  hath  not  receiv- 
ed any  part  of  the  sum  for  which  the  judgment  or  decree  was 
passed — except  such  part,  if  any,  as  is  credited."  And  an  as- 
signee of  such  judgment  shall  also  produce  the  assignment,  un- 
der the  hand  of  the  assignor; — and  if  there  has  been  more  than 
one  assignment,  each  assignment  shall  be  produced  under  the 
hand  of  the  party. 

2d.  If  a  special  bail  shall  have  discharged  a  judgment  against 
the  deceased,  he  shall  be  considered  as  the  judgment  creditor ; 
and  in  case  the  plaintiif  who  obtained  the  judgment  shall  not 
have  assigned  the  same  (as  he  ought  to  do,)  to  the  bail,  a  receipt 
from  him,  given  to  the  bail,  shall  be  considered  as  equivalent  to 
an  assignment. 

3d.  If  there  be  more  than  one  creditor,  the  whole  oath  afore- 
said, with  the  other  vouchers  shall  be  suflScient. 


CH.  XLIV.]      ADM'rN. — AUTHENTICATION  OF  DEBTS.  307 

SPECIALTY,    BOND,    NOTE,    OR    BILL. 

II. — 1st.  In  case  of  a  specialty,  bond,  note,  or  bill  of  exchange 
protested,  the  vouchers  shall  be  the  instrument  of  writing  itself, 
or  a  proved  copy  in  case  it  be  lost,  with  a  certificate  of  the  oath  or 
affirmation,  made  as  aforesaid,  since  the  death,  and  endorsed  on 
or  annexed  to  the  instrument,  or  a  statement  of  the  claim,  "that 
no  part  of  the  money  intended  to  be  secured  by  such  instrument 
hath  been  received,  or  any  security  or  satisfaction  given  for  the 
same,  except  what,  if  any,  is  credited :" — and  if  the  creditor  on 
such  instrument  be  an  assignee,  there  shall  be  the  same  oath  or 
affirmation  of  the  original  creditor  with  respect  to  the  time  of  the 
assignment;  and  in  case  of  successive  assignees,  there  shall  be 
the  same  oath  or  affirmation  taken  by  each,  with  respect  to  the 
time  of  each  respective  assignment." 

2d.  "  In  case  of  a  bill  of  exchange  in  addition  to  the  foregoing 
requisites,"  the  protest  and  other  things  which  would  be  required 
if  the  deceased  were  alive,  shall  be  necessary  to  justify  the  execu- 
tor or  administrator  in  making  payment  or  distribution. 

RENT. 

III.  If  the  claim  be  for  rent,  there  shall  be  produced  the  lease 
itself,  or  the  deposition  of  a  credible  witness  or  witnesses,  or  an 
acknowledgment  in  writing  of  the  deceased  establishing  the  con- 
tract, and  the  time  which  has  elapsed  during  which  rent  was 
chargeable,  and  a  statement  of  the  sum  due  for  such  rent,  with  an 
oath  or  affirmation  of  the  creditor  thereon  endorsed,  "that  no  part 
of  the  sum  due  for  said  rent,  or  any  security  or  satisfaction  for  the 
same  hath  been  received,  except  what,  if  any,  is  credited."  And 
if  the  creditor  be  an  assignee,  there  shall  be  such  oath  or  affirma- 
tion of  the  original  creditor,  with  respect  to  the  time  of  the  as- 
signment." 

OPEN    ACCOUNT. 

IV.  The  vouchers  and  proof  of  any  claim  or  open  account  shall 
be  a  certificate  of  the  oath  or  affirmation  of  the  creditor  as  afore- 
said, since  the  death,  endorsed  on  or  annexed  to  the  account,  "that 
the  account  as  stated  is  just  and  true,  and  that  he  or  she  hath  not 
received  any  part  of  the  money  stated  to  be  due,  or  any  security 
or  satisfaction  for  the  same,  except  what,  if  any,  is  credited ;"  and 


308  ADM'RN. — AUTHENTICATION  OF  DEBTS.       [CH.  XLIV. 

moreover,  such  account  shall  not  be  paid  until  the  same  be  exam- 
ined and  allowed  by  the  Orphan's  court."* 

§  2.  It  is  the  duty  of  every  executor  and  administrator  when- 
ever a  demand  against  the  decedent's  estate  is  presented,  to  make 
due  enquiry  if  it  is  just.  He  may  pay  any  demand  on  satisfac- 
tory proof  that  it  is  justly  due,  without  suit ; '  but  if  there  is  no 
other  evidence,  (as  a  judgment,  bond.  &c,)  he  should  require  the 
oath  or  affidavit  of  a  disinterested  person,  whom  he  sho«ld  inter- 
rogate as  to  the  circumstances,  and  the  witnesses'  means  of  know- 
ing them.  And  if  no  ground  of  suspicion  appear,  the  demand 
may  be  paid  on  that  evidence ; — but  the  executor  may  resist  until 
judgment  is  recovered  against  him,  and  he  ought  to  resist,  if  he 
suspects  the  fairness  of  the  demand. — 5  Dana,  39.  If  he  litigates 
in  good  faith,  he  will  be  reimbursed  out  of  the  estate  for  his  costs 
and  expenses. — 1  Hill's  (S.Car.)  Ch.R.  411 — So,  of  counsel's  fees. 
2  M'Cord's  Ch.  R.  36;  2  Hill's  Ch.  R.  377. 

Judgment  on  a  claim  against  an  administrator  in  his  represen- 
tative capacity,  is  a  sufficient  authentication  of  such  claim  within 
the  meaning  of  the  90th  section  of  the  Orphan's  court  law.  (See 
Poindexter's  Code,  1822)— 3  How.  216. 

The  90th  section  of  the  Orphan's  court  law,  regulating  the  au- 
thentication of  claims  against  the  estate  of  deceased  persons,  was 
only  designed  to  protect  the  administrator  or  executor  against  the 
consequences  of  wrongful  payments,  which  he  may  choose  to 
make  voluntarily ;  for  if  he  discharges  the  debt  without  the  vou- 
cher required  by  law,  he  does  it  at  his  own  risk.     3  How.  301. 

Nor  does  the  law  require  an  authentication  of  a  claim  against 
the  estate  of  a  deceased  person  as  a  prerequisite  to  presentment, 
in  order  to  prevent  the  statute  from  attaching  as  a  bar.  4  How. 
242. 

§  3.  Since  the  act  abolishing  imprisonment  for  debt,  there  can 
properly  speaking  be  no  bail  bond  such  as  is  mentioned  in  2d 
article  of  the  first  division  of  this  chapter,  (see  p.  306) — but  it 


*It  will  be  observed  that  only  an  open  account  is  required  to  be  both,  sworn  to 
and  allowed  by  the  Court.  Those,  not  open,  may  be  paid,  if  either  sworn  to,  or 
allowed  by  the  Court.  But  the  practice  of  the  Court,  and  it  is  a  safe  one,  is  to  re- 
quire the  oath  in  both  cases. 


CH.  XLV.]         ADM'rN. — PRESENTATION  OF  CLAIMS.  309 

might  admit  of  a  question  whether  the  mode  of  authentication 
there  provided,  would  not  apply  equally  to  securities  on  an  at- 
tachment or  replevin  bond.     Query  ? 


^  CHAPTER  XLV. 

ADMINISTRATION PRESENTATION   OF  CLAIMS. 

§  1.  Although  it  is  not  necessary  to  authenticate  claims  against 
the  estate  of  a  decedent  in  the  manner  prescribed  in  the  forego- 
ing chapter,  (except  to  justify  the  administrator  in  paying  them, 
if  he  will,)  yet  our  statute  requires  them  to  be  'presented  within  a 
limited  period,  in  order  that  the  administrator  may  know  for  wjhat 
amount  his  intestate's  estate  is  liable,  and  may  be  enabled  to  make 
provision  to  pay  them  as  the  law  directs.  It  is  provided,  that 
"all  claims  against  the  estate  of  deceased  persons  shall  be  pre- 
sented to  the  executor,  administrator,  or  collector,  within  eighteen 
months,  after  the  publication  of  notice  for  that  purpose,  by  such 
executor,  administrator  or  collector,  and  not  after ;  and  all  claims 
not  presented  within  the  time  aforesaid,  shall  be  forever  barred, 
and  the  estate  of  the  testator  or  intestate  shall  be  thereafter  dis- 
charged from  the  payment  of  such  claim  or  claims,  and  the  ex- 
ecutor, administrator  or  collector,  may  give  this  act  in  evidence, 
without  pleading  the  same  specially,  in  bar  of  any  suit  or  action, 
either  in  law  or  equity,  brought  to  recover  the  amount  of  any 
claim  or  claims,  of  which  notice  had  not  been  given,  by  the  cred- 
itor or  creditors,  according  to  the  foregoing  provisions — Provided, 
that  the  above  limitation  shall  not  be  construed  to  extend  to  leg- 
atees or  distributees,  claiming  as  such;  and  in  case  the  creditor 
or  creditors  shall  reside  without  the  limits  of  this  State,  and  have 
no  agent  or  attorney  resident  within  the  same,  a  further  term  of 
eighteen  months  shall  be  allowed  such  creditor  or  creditors  to 


310  ADM'rN. PRESENTATION  OF  CLAIMS.         [CH.  XLV, 

present  his,  her  or  their  claim  or  claims,  to  the  executor,  admin- 
istrator or  collector  of  the  testator  or  intestate.    How.  &  H.  413. 

And  "  it  shall  be  the  duty  of  executors,  administrators  and  col- 
lectors, within  two  months  after  granting  letters  testamentary  or 
of  administration,  to  publish  in  some  newspaper  printed  in  this 
State,  a  notice  requiring  all  persons  having  claims  against  the  es- 
tate of  their  testator  or  intestate,  to  exhibit  the  same  within  the 
time  limited  by  law,  or  the  same  will  be  barred — which  notice 
shall  state  the  time  of  granting  such  letters  testamentary  or  of  ad- 
ministration, and  shall  continue  to  be  published  once  a  week  for 
six  weeks,  or  for  a  longer  time  as  the  court  shall  direct.  How.  & 
H.  414— Acts  1821. 

§  2.  Any  legal  evidence  that  would  establish  the  fact  of  the 
knowledge  of  an  executor  or  administrator,  (before  the  limited  pe- 
riod has  expired,)  to  the  satisfaction  of  a  jury,  that  a  claim  exists 
against  his  testator  or  intestate,  will  be  a  sufficient  presentation 
under  the  statute  to  such  executor  or  administrator.  2  Sm.  &  M. 
403. 

Notice  by  mail  of  the  dishonor  of  a  note  made  by  a  deceased 
person,  which  fell  due  after  his  death,  if  received  by  his  executor 
within  the  proper  time,  is  a  sufficient  presentation  of  the  note  to 
the  executor  to  prevent  the  statute  of  limitations  from  barring  it. 

im. 

And  even  a  motion  in  the  Circuit  court,  in  time,  against  an  ad- 
ministrator, for  money  paid  as  surety  of  his  intestate,  and  an  ap- 
pearance and  resistance  of  the  motion  by  the  administrator,  is  a 
sufficient  presentation  of  the  claim  within  the  statute.  3  How. 
216. 

Notes  secured  by  mortgage  are  not  necessarily  to  be  presented. 
The  statute  does  not  apply  to  them.     Sm.  &  M.  687. 

§  3.  The  period  of  limitation  does  not  commence  running,  till 
the  whole  time  of  publication  of  the  grant  of  letters  is  com'pleted. 
2  Sm.  &  M.  403.  And  the  limitation  does  not  attach  at  all,  unless 
publication  is  made  according  to  the  directions  of  the  law. — 2 
Sm.  &  M.  452. 

And  the  nine  months  during  which  an  administrator  is  pro- 
tected from  being  sued,  will  not  be  computed  within  the  period 
of  limitation.    See  title  "Limitation." 


CH.  XLVI.]         ADM'rN. — INSOLVENCY  OF  ESTATE.  311 

§  4.  In  a  public  notice  of  the  granting  of  letters  of  administra- 
tion, an  error  of  two  days  as  to  the  time  when  granted,  is  imma- 
terial.   3  Stew.  288. 

Legal  publication  consists  of  the  number  of  insertions  ordered 
by  the  court.  Any  number  less  than  the  required  number  of  in- 
sertions, at  the  periods  assigned  by  law,  falls  as  short  of  the  mean- 
ing of  "publication"  in  the  statute,  as  it  would  of  giving  a  propor- 
tionate degree  of  publicity  in  point  of  fact.  The  term  of  publica- 
tion in  the  statute  must  be  fully  completed  and  ended,  before  the 
obvious  intent  of  the  law  is  answered ;  and  it  is  a  prerequisite  to 
the  commencement  of  the  limitation  of  claims  against  an  estate,  p 


CHAPTER  XLVI. 


u 

•«T 

III 


ADMINISTRATION-— INSOLVENCY  OF  ESTATE.  .j 

§  1.  When  the  estate  both  real  and  personal  of  any  person  de- 
ceased, shall  be  insolvent,  or  insufficient  to  pay  all  just  debts 
which  the  deceased  owed,  the  said  estate  both  real  and  personal, 
shall  be  distributed  to  and  among  all  the  creditors  in  proportion 
to  the  sums  to  them  respectively  due  and  owing,  saving  that  debts 
due  for  the  last  sickness  and  necessary  funeral  expenses  of  the 
deceased,  shall  be  first  paid.  And  the  executor  or  administrator 
shall  exhibit  to  the  Probate  court,  (before  any  debts  paid  to  any 
creditor,  except  as  aforesaid,)  an  account  and  statement  as  is  di- 
rected in  the  98th  sect,  of  this  act,  (see  sec.  4,  p.  286,  ante,)  inclu- 
ding also  the  lands,  tenements  and  hereditaments  of  the  testator 
or  intestate.    And  if  it  appear  to  the  said  Probate  court,  that  such 


312  ADM'rN.— INSOLVENCY  OF  ESTATE.         [CH.  XLVI. 

estate  is  insolvent,  then  after  ordering  the  lands,  tenements  and 
hereditaments  of  the  testator  or  intestate,  to  be  sold  as  aforesaid, 
they  shall  appoint  two  or  more  fit  persons  to  be  commissioners, 
with  full  power  to  receive  and  examine  all  claims  of  such  estate ; 
and  the  said  commissioners  shall  appoint  the  times  and  places  of 
their  meeting  to  attend  the  creditors,  for  receiving  and  examining 
their  claims,  to  be  made  known  by  causing  notices  to  be  posted 
up  in  such  public  places,  and  published  in  such  newspaper  or 
newspapers  as  the  said  Probate  court  shall  direct ;  and  sir  months, 
and  such  further  time,  (as  the  circumstances  of  the  case  may  re- 
quire,) not  exceeding  eighteen  months,  shall  be  allowed  by  the 
said  court  to  the  creditors  for  bringing  in  and  proving  their  claims 
before  the  said  commissioners;  at  the  end  of  which  limited  time, 
the  said  commissioners  shall  make  their  report,  and  present  on 
oath  a  list  of  all  the  claims  that  shall  have  been  laid  before  them, 
with  the  sums  they  shall  allow  bn  each  respective  claim,  to  the 
Probate  court ; — and  the  said  court  shall  order  just  recompense 
to  the  said  commissioners  out  of  the  estate  of  the  deceased.  And 
the  debts  due  for  the  last  sickness  and  necessary  funeral  expenses 
being  first  deducted,  the  said  court  shall  order  the  residue  and  re- 
mainder of  the  estate,  both  real  and  personal,  (the  real  estate  be- 
ing sold  according  to  law,)  to  be  paid  and  distributed  by  the  ex- 
ecutor or  administrator,  to  and  among  the  creditors,  who  shall 
have  made  out  their  claims  with  the  commissioners  as  aforesaid, 
in  proportion  to  the  sums  unto  them  respectively  due  and  owing. 
Provided,  that  notwithstanding  the  report  of  any  commissioner, 
the  creditor,  whose  claim  is  wholly  or  in  part  rejected,  or  any  ex- 
ecutor or  administrator  who  may  be  dissatisfied  with  such  report, 
on  a  particular  claim,  may  for  good  and  sufficient  cause  shown  by 
the  said  creditor,  executor  or  administrator,  to  the  said  Probate 
court,  have  the  said  claims  referred  by  the  said  court  to  referees, 
whose  report  and  award  thereon,  returned  to  the  next  term  of  the 
said  court  and  approved  of,  shall  be  final  and  conclusive.  And 
to  the  end  that  the  executor  or  administrator  may  have  an  oppor- 
tunity to  ascertain  the  situation  of  the  estate  of  the  testator  or  in- 
testate, no  suit  or  action  shall  be  commenced  or  sustained  till  af- 
ter the  expiration  of  (by  act  of  1821,  six  months,  but  now  by  act 
of  1826)  nine  months  from  the  time  of  proving  the  will  of  the 


<:m.  XLVi.]       adm'rn. — insolykncV  of  estate,  318 

testator,  or  of  granting  letters  of  administration  on  the  estate  of 
the  deceased.  Nor  shall  any  action  or  suit  be  commenced  or  sus- 
tained against  him  after  the  estate  of  the  testator  or  intestate  be 
represented  insolvent;  excepting  however,  in  all  cases,  actions 
for  the  debts  due  for  the  last  sickness  and  funeral  expenses  of  the 
deceased — excepting  also,  that  if  the  executor  or  administrator 
have  objections  to  the  claim  on  which  any  action,  other  than  those 
last  mentioned  may  be  brought,  shall  consent  to  have  such  claim 
settled  by  action  at  law,  in  such  case  the  judgment  of  the  court  shall 
determine  the  claim  and  be  reported  by  the  commissioners  as 
such.  Every  executor  or  administrator,  after  final  apportionment 
of  such  distribution  among  the  creditors  of  the  testator  or  intes- 
tate, as  aforesaid,  shall  be  liable  to  the  creditors  for  their  respec- 
tive shares  in  such  distribution.  And  if  any  creditor  shall  not 
make  out  his  claim  with  the  commissioners  within  the  time  of 
their  commission,  or  before  referees,  or  at  common  law  in  the 
manner  this  act  prescribes,  he  shall  be  forever  barred  of  his  debt 
or  demand,  unless  such  creditor  shall  find  other  estate  of  the  de- 
ceased not  inventoried  or  accounted  for  by  the  executor  or  admin- 
istrator before  distribution.     How.  &  H.  410 — Act  1821. 

In  case  any  suit  shall  be  pending  against  an  executor  or  admin- 
istrator at  the  time  he,  she  or  they  shall  represent  the  estate  of  the 
testator  or  intestate  insolvent,  such  suit  shall  not  abate  or  be  dis- 
missed, in  consequence  of  such  insolvency,  but  the  plaintiff  pro- 
ceed to  trial  and  judgment.  No  execution  shall  issue  on  such 
judgment  against  any  such  insolvent  estate,  but  shall  and  may  be 
filed,  as  a  claim  against  the  estate  of  such  testator  or  intestate, 
any  thing  contained  in  the  103d  section  of  the  act  to  which  this 
is  an  amendment,  to  the  contrary  notwithstanding.  How.  &  H. 
415— Act,  1822. 

§  2.  Any  creditor  whose  debt  is  not  due,  may  exhibit  it  to  the 
executor,  administrator  or  collector,  as  if  it  were  due — and  there- 
upon shall  be  considered  as  a  creditor  under  this  act,  and  shall 
receive  a  dividend  of  the  estate  of  said  testator  or  intestate,  de- 
ducting a  rebate  of  legal  interest,  for  what  he  shall  receive  on  such 
debt,  to  be  computed  from  the  actual  payment  thereof,  to  the  time 
5uch  debt  would  have  become  due.  How.  &  H.  410, 
40 


314  ADM'rN. — INSOLVENCY  OF  ESTATE.         [CH.  XLVI. 

§  3.  The  commissioners  appointed  to  receive  and  examine  the 
claims  of  the  creditors  of  the  estate  of  any  person  deceased,  when 
reported  insolvent,  are  hereby  authorised  and  empowered,  when 
judged  expedient  by  a  majority  of  them,  to  examine  on  oath  or 
affirmation  any  creditor,  touching  the  truth  of  his  or  her  claims ; 
and  may,  thereupon,  inquire  of  such  creditor,  the  truth  of  any 
writing,  demand,  or  the  charges  in  any  account  exhibited,  as  a 
claim  against  such  insolvent  estate,  and  whether  the  same  and 
every  part  thereof  remains  actually  due  and  unpaid,  and  may 
make  such  other  questions  relative  thereto,  as  shall  be  material 
and  tending  to  discover  the  truth  of  such  claim ; — and  the  said 
commissioners,  or  either  of  them,  are  hereby  authorised  and  em- 
powered to  administer  such  oath  or  affirmation.  And  if  any  per- 
son who  shall  have  taken  such  oath  or  affirmation,  (the  same  hav- 
ing been  duly  administered  as  aforesaid,)  shall  thereupon  wilful- 
ly and  corruptly  make  any  false  answer  or  answers  to  any  ques- 
tion or  questions,  material  to  the  determination  of  the.  truth  of  the 
claim  in  proof  of  which  such  oath  or  affirmation  shall  have  been 
taken,  and  shall  be  thereof  duly  convicted,  he  or  she  so  oflfending, 
shall  be  adjudged  guilty  of  wilful  and  corrupt  perjury,  and  liable 
to  the  pains  and  penalties  thereof    How.  &  H.411 — Acts  1821. 

§4.  If  the  commissioners  appointed  by  the  Probate  court  of 
any  county,  to  receive  and  examine  claims  against  the  estate  of 
any  deceased  person,  which  has  been  by  the  Probate  court  declar- 
ed insolvent,  shall  fail  to  make  their  final  report  within  the  time 
limited  by  law,  it  shall  be  the  duty  of  such  Probate  court  to  make 
new  appointments,  or  extend  the  time  for  the  said  commissioners 
to  receive  claims  against  such  estate,  and  report  thereon,  to  such 
time  as  shall  to  said  court  seem  reasonable  and  just,  any  thing  in 
this  act  to  the  contrary  notwithstanding.     Ibid. 

§  5.  In  addition  to  the  powers  granted  in  the  one  hundred  and 
seventh  section  of  the  act  to  which  this  is  an  amendment,  the 
Probate  court  shall  have  power  to  compel  commissioners  to  report, 
agreeably  to  the  order  of  court,  by  citation  or  attachment,  as  the 
case  may  require ;  and  shall  allow  said  commissioners  three  dol- 
lars per  day,  to  be  paid  out  of  the  insolvent's  estate.  How.  &  H. 
421— Act  1839. 


CH.  XLVI.]         ADM'rN. — INSOLVENCY  OF  ESTATE.  315 

When  Estate  may  be  reported  Insolvent. 

§  6.  The  estate  of  a  decedent  may  be  declared  insolvent  when 
from  a  comparison  of  the  debts  exhibited  to  the  administrator  a- 
gainst  the  estate,  and  an  estimate  of  the  probable  value  of  the 
whole  estate,  both  real  and  personal,  it  appears  that  the  amount 
of  debts  is  greater  than  the  probable  value  of  the  property. — 2 
Sm.  &  M.  287.  And  it  is  not  necessary  in  order  to  ascertain  this, 
and  declare  an  estate  insolvent,  that  an  order  should  have  been 
previously  obtained  directing  a  sale  of  the  realty  of  the  deceased. 
Ihid. 

An  estate  may  be  represented  and  declared  insolvent  after  the 
expiration  of  the  nine  months  from  the  grant  of  letters  testamen- 
tary or  of  administration ;  and  it  seems,  at  any  time  before  the  ex- 
piration of  the  period  limited  for  the  presentation  of  claims — 6 
How.  352 — that  is,  within  eighteen  months  as  to  resident,  and 
thirty-six  months  as  to  non-resident  creditors,  having  no  agent 
here.    See  sec.  1,  p.  309  ajtte. 

The  Probate  court  has  a  discretion  in  declaring  an  estate  in- 
solvent, which,  when  exercised,  is  conclusive,  unless  a  direct  ap- 
peal is  taken ;  but  a  judgment  cannot  be  collaterally  impeached. 
6  How.  452. 

An  administrator  ought  to  represent  an  estate  insolvent,  only 
when  he  believes  it  to  be  so.  Nor  ought  the  Judge  of  Probate  to 
allow  such  a  representation  and  award  the  commission  of  insol- 
vency, unless  he  also,  on  examination,  has  reason  to  believe  the 
fact. — 17  Mass.  380,  386.  But  a  commission  may  be  awarded  on 
an  apparent  insolvency,  and  the  judge  may,  on  the  return  of  the 
commission  and  the  settlement  of  accounts,  either  decree  a  dis- 
tribution of  the  effects  as  of  an  insolvent  estate,  or  not ;  and  if  he 
does,  such  decree  becomes  legal  evidence  of  an  absolute  insol- 
vency.   4  Mass.  R.  448. 

And  where  the  Judge  of  Probate  rejects  a  representation  of  in- 
solvency, and  on  a  second  application  of  the  administrator,  he  of- 
fers to  support  his  representation  by  legal  evidence,  the  Judge 
should  receive  the  evidence  and  decree  thereon  without  reference 
to  his  first  decree.  For  since  the  first  decree,  new  evidence  of  the 
insufficiency  of  the  estate  to  pay  debts  may  have  been  discovered 


316  ADM'rN. — INSOLVENCY  OF  ESTATE.         [cH.  XLVI, 

by  the  applicant,  or  credits  and  effects  counted  on  as  assets,  may 
have  become  worthless.    6  Mass.  R.  448, 

Notice  by  Commissioners. 
§  7.  The  court  of  Probate  has  full  discretion  under  the  statute, 
to  direct  the  mode  of  notice  to  creditors  of  the  time  and  place  of 
their  meeting  to  receive  and  audit  claims — and  where  the  court 
directs  a  publication  in  a  newspaper  only,  and  the  order  of  the 
court  is  followed,  it  will  be  sufficient,  though  no  notices  be  pub- 
lished in  public  places.    2  Sm.  &  M.  287. 

Time  of  Commissioners'  Report. 

§  8.  Commissioners  of  insolvency  may  report  at  any  time  (after 
the  period  of  their  appointment  has  expired,)  within  eighteen 
months  from  the  date  of  their  appointment,  and  their  report  if 
received  and  allowed  by  the  Probate  court,  will  be  valid — where 
it  appears  that  the  court  subsequently  to  the  expiration  of  the  time 
of  their  appointment,  extended  the  time,  at  a  term  subsequent  to 
that  at  which  the  commissioners  were  ordered  to  report.  2  Sm. 
&  M.  287. 

The  Judge  of  Probate  (under  the  Massachusetts  statute,)  can 
re-open  a  commission,  before  distribution,  and  within  the  time, 
limited  by  the  statute.     16  Pick.  255 — See  also  6  Pick,  458. 

It  is  no  part  of  the  official  duty  of  an  administrator  to  receive 
the  report  of  commissioners,  and  to  carry  or  send  it  to  the  Judge 
of  Probate ; — and  if  he  do  receive  such  report,  and  undertake  to 
return  it,  this  is  merely  a  personal  engagement,  for  the  perform- 
ance of  which  the  sureties  in  his  bond  are  not  liable. — 1  Greenl. 
251.  It  is  the  duty  of  the  commissioners  of  an  insolvent  estate 
to  make  their  own  return  to  the  Judge  of  Probates.  Ibid.^ 
Exceptions  to  the  Report. 

§  9.  The  report  of  commissioners  of  an  insolvent  estate  for  the 
allowance  and  settlement  of  claims,  must  be  excepted  to  at  the  term 
of  the  Probate  court  to  which  it  is  returned. — 6  How.  524.  At 
any  term  of  the  Probate  court  after  the  report  of  the  commission- 
ers appointed  to  audit,  &c.  has  been  received  and  approved,  it  is 
too  late  to  open  it.  2  Sm.  &  M.  520;  1  Sm.  &  M.  321~But  see 
16  Pick.  255,  and  6  Pick.  458,  and  compare  them  with  the  fore- 
going. 


GH.  XLVI.]         ADM'rN. — INSOLVENCY  OF  ESTATE.  317 

Nor  can  the  Probate  court,  at  a  term  subsequent  to  that  at  which 
the  report  of  the  commissioners  of  insolvency  is  received  and  con- 
firmed, set  it  aside,  unless  for  some  reason,  the  previous  order  had 
been  null  and  void.  The  provision  of  the  statute  in  regard  to  the 
appointment  of  referees  for  the  allowance  of  claims  against  insol- 
vent estates,  is,  so  far  as  it  relates  to  creditors,  subsidiary  to  the 
appointment  of  commissioners,  and  is  only  exercised  when  a 
claim  has  been  submitted  to  commissioners,  and  by  them,  in 
whole  or  in  part,  rejected  * 

Effect  of  representing  Estate  insolvent. 

§  10.  When  an  estate  is  represented  insolvent,  the  course  of 
the  common  law  in  regard  to  the  claims  of  creditors  is  stopped, 
and  they  cannot  afterwards  sue  their  claims,  even  though  the  es- 
tate should  ultimately  prove  solvent ;  but  the  course  pointed  out 
by  the  statute  must  be  pursued.  15  Mass.  264;  6  Pick.  330; 
Minor,  254. 

But  if  suit  has  already  been  brought,  the  plaintiff  shall  be  en- 
titled to  judgment,  but  not  execution.  See  ante  sec.  1,  p.  313, 
citing  How.  &  H.  415. 

If  an  apparent  insolvency  happens  pending  a  suit,  the  credit- 
or is  not  obliged  to  proceed  to  judgment,  nor  need  he  discontin- 
ue his  suit,  as  the  estate  may  not  prove  eventually  insolvent,  or 
the  apparent  insolvency  may  be  defeated  by  the  negligence  of 
the  executor  or  administrator,  in  which  cases  the  plaintiff  may 
have  judgment  and  execution,  (or  his  claim  before  the  commis- 
sioners may  be  disallowed,!)  in  which  case  he  is  entitled  to  pro- 
ceed to  judgment. — 4  Mass.  620,  625.  But  if  during  apparent 
insolvency,  and  before  an  absolute  one,  a  creditor  sues  without 
first  submitting  his  claim  to  the  commissioners,  the  executor  or 


•Where  commissionerB  of  insolvency  allow  part  of  a  claim  and  reject  part,  and 
the  creditor  docs  not  give  notice  of  his  dissatisfaction  with  the  report,  and  the 
executor  brings  an  action  against  the  creditor  on  a  demand  in  favor  of  the  estate, 
which  was  not  laid  before  the  commissioners  of  insolvency,  the  creditor  is  not  pre- 
cluded from  tiling,  in  set-off,  that  part  of  his  claim  which  was  rejected  by  the 
commissioners.    9  Pick.  37;  2  Mass.  498;  1  Tyler,  198. 

tAn  action  at  law,  by  statute  of  Mississippi,  on  objection  of  the  excculora  or 
administrators,  is  only  allowed  with  their  consent — where  disallowed  by  the  com- 
misBioners,  the  only  appeal  is  to  a  Board  of  Referees.     See  sec.  1,  ante. 


318  ADM'rN. — INSOLVENCY  OF  ESTATE.         [CH.  XLVI. 

administrator  may  abate  the  writ  by  admitting  the  demand  and 
pleading  the  insolvency. — Ibid.  But  where  the  executor  or  ad- 
ministrator disputes  the  demand,  the  plaintiff  may  proceed  to 
judgment,  as  conclusive  evidence  of  his  claim  to  be  laid  before 
the  commissioners,  but  he  cannot  have  execution. — Ibid.  (This 
rule  is  inapplicable  under  our  statute,  as  no  suit  can  be  brought 
against  an  executor  or  administrator  here,  after  a  representation  of 
the  insolvency  of  an  estate — which  amounts  to  apparent  insol- 
vency.) 

Where  a  defendant  dies  pending  the  suit,  and  the  administra- 
tor comes  in  to  defend,  the  judgment  issuing,  if  any,  against  the 
estate  of  the  deceased,  is  to  be  laid  before  the  commissioners  of 
insolvency,  and  by  them  to  be  received  as  conclusive  evidence  of 
the  debt,  and  the  amount  is  to  be  placed  on  the  list  of  claims  to 
be  reported. — 7  Pick.  239,  And  the  whole  amount  of  the  judg- 
ment, including  the  cost  as  well  as  the  debt,  is  to  be  certified  to 
the  Judge  of  Probate  and  added  to  the  list.     11  Pick.  389. 

If  there  appear  to  be  an  absolute  insolvency,  the  executor  or 
administrator  may  plead  a  special  plene  administravit — and  if  the 
creditor  admits  the  truth  of  the  plea,  or  it  be  proved,  no  judgment 
can  be  rendered  for  either  party.    4  ib.  620,  625. 

And  where  judgment  was  recovered  against  an  administrator, 
and  afterwards  he  discovered  the  estate  to  be  insolvent,  and  so 
represented  it  to  the  Probate  court,  which  appointed  commission- 
ers, &c. — and  afterwards  plaintiff  issued  execution,  which  was 
returned  "nulla  bona,"  and  he  thereupon  sued  out  a  scire  facias^ 
suggesting  waste — held,  the  defendant  might  plead  the  proceed- 
ings in  the  Probate  court  representing  insolvency,  &c.  as  a  de- 
fence in  bar  of  the  action.     5  Greenl.  45. 

Where  a  judgment  is  obtained  against  the  administrator  of  a 
decedent  after  a  representation  of  insolvency,  an  execution  there- 
on will  be  enjoined  in  Chancery— -1  Sm.  &  M.  Ch.  R.  599 — or 
the  court  from  which  the  execution  issues  may  stay  the  process, 
6  How.  352. 

But  the  lien  of  a  creditor  who  has  obtained  judgment  and  sued 
out  execution  thereon,  before  the  death  of  the  decedent,  is  not  cut 
out  by  a  report  or  representation  of  insolvency.    7  How.  226. 


CH.  XLVI.]         AUM'rN. — INSOLVRNGY  OF  ESTATE.  319 

"  By  our  statute  a  judgment  becomes  a  lien  from  the  time  of 
its  rendition,  on  all  of  the  defendant's  property  *  By  statute,  also, 
the  property  of  a  deceased  person  becomes  liable  for  his  debts, 
from  the  time  of  his  death.  The  law  declares  that  when  an  in- 
testate shall  be  insolvent,  the  assets  shall  be  distributed  amongst 
all  the  creditors  in  proportion  to  their  respective  claims.  There 
is  also  a  provision  that  no  suit  shall  be  commenced  or  prosecuted 
after  an  estate  is  reported  insolvent ;  and  a  further  provision  that, 
if  a  suit  be  pending,  when  such  report  is  made,  it  shall  not  abate, 
but  may  be  prosecuted  to  judgment — but  no  execution  shall  issue, 
&c.  But  a  judgment  recovered  against  an  administrator,  when 
the  estate  is  insolvent,  bears  no  analogy  to  a  judgment  recovered 
against  the  intestate.  In  the  latter  case,  the  judgment  was  a  sub- 
sisting lien  before  the  death  of  the  deceased  debtor,  and  the  for- 
mer being  only  a  general  liability,  cannot  defeat  a  fixed  lien  hav- 
ing a  previous  existence." 

"  The  provision  which  declares  that  when  the  estate  is  insolv- 
ent, the  assets  shall  be  distributed  in  proportion  to  the  debts,  can 
only  mean  such  assets  as  the  administrator  can  control." 

In  case  of  judgments  against  a  decedent,  obtained  in  his  life- 
time, "the  assets  come  to  the  hands  of  the  administrator  incum- 
bered, and  that  incumbrance  must  be  removed  before  general 
creditors  can  be  let  in."    7  How.  226. 

If  the  defendent  die  after  judgment,  and  before  the  issuance  of 
an  execution,  the  judgment  must  be  revived  by  scire  facias,  be- 
fore an  execution  can  issue.    3  Sm.&  M.  1. 

If  one  execution  issue  and  be  returned  without  a  levy,  and  de- 
fendant dies  before  issuing  a  second,  a  revival  is  necessary. — Ih. 
2  How.  604;  Walker's  Rep.  155;  ib.  66;  ib.  174. 

But  a  sale,  undet  an  execution  against  an  administrator  without 
revival  of  judgment,  is  good. — 5  How.  153.  Scire  facias  against 
an  administrator  to  revive  a  suit,  is  not  in  the  character  of  an  ac- 


*But  now  by  the  statute  of  1844,  it  is  provided  that  "all  liens  against  any  pur- 
chaser or  purchasers,  of  any  property  purchased  at  a  sale  of  any  decedent's  estate, 
now  given  by  law,  shall  cease  and  determine  as  to  creditors  of  such  purchaser  or 
purchasers,  or  to  the  vendee  of  said  purchaser  or  purchasers,  unless  such  lien  is 
enforced  within  two  years  after  the  maturity  of  the  debt,  to  secure  the  payment 
of  which  such  lien  is  given.     Act  of  1844 — sec.  13,  ch.8,  p.  101. 


380      ADM^RN. — INSOLVENCY  OF  ESTATE.    [cH.  XLVI. 

tion,  and  may  be  maintained  previous  to  the  expiration  of  the 
nine  months.     1  How.  273. 

Remedy  of  Creditor  not  exhibiting  his  claim. 

§  11.  The  discovery  by  a  creditor,  of  an  insolvent  estate  of 
property  not  inventoried  or  accounted  for,  does  not  entitle  him  to 
an  action  against  the  administrator  or  executor,  after  four  years, 
(in  Mississippi,  eighteen  months,)  the  time  limited  by  law  of 
Massachusetts  for  suing  executors  and  administrators ;  and  wheth- 
er it  entitles  him  in  any  case  seems  doubtful.  It  certainly  does 
not  if  he  has  filed  his  claim  with  the  commissioners.  (See  sec.  1, 
ante.) — 15  Mass.  148;  ib.  491;  ib.  140,  If  property  not  invento- 
ried or  accounted  for  by  an  executor  or  administrator,  be  discov- 
ered by  a  creditor  to  an  insolvent  estate,  the  executor  or  admin- 
istrator on  being  apprised  of  the  fact,  should  administer  the  same; 
and  if  he  refuse,  the  remedy  of  the  creditor  is  by  representing  the 
fact  to  the  Judge  of  Probate,  who  has  authority  to  remove  such 
administrator,  and  appoint  another,  whose  interest  as  well  as  duty 
would  be  to  do  justice  in  this  respect.    Ibid. 

If  the  administratrix  of  an  estate  represented  insolvent,  when 
requested  by  creditors  to  inventory  real  estate,  alleged  to  have 
been  fraudulently  conveyed  by  the  intestate,  they  offering  to  in- 
demnify her,  refuses  to  do  so,  it  will  be  sufficient  ground  for  her 
removal.    7  Pick.  250. 

The  recovery  by  the  heirs  of  one  deceased  of  a  judgment  for 
land  to  which  the  deceased  had  lost  his  right  of  entry,  cannot  be 
regarded  as  the  discovery  of  estate  not  inventoried  or  accounted 
for,  within  the  meaning  of  the  Massachusetts  statute — 15  Mass. 
140 — nor  the  recovery  of  estate  of  which  the  deceased  was  color- 
ably  or  fraudulently  disseized  dhring  his  life-time.  Ib.  148. 
.  And,  it  seems,  where  a  creditor  of  an  insolvent  estate,  which 
has  been  closed,  neglected  to  exhibit  his  claim  within  the  time 
allowed,  if  he  afterwards  discover  and  show  to  the  administrator, 
other  estate  not  before  inventoried,  he  may  sustain  an  action  a- 
gainst  such  administrator  for  the  recovery  of  his  claim — 1  Connt. 
13 — and  he  may  sue  on  his  bond.     Kirby,  39. 

A  court  of  Probates  may  compel  the  administrator  on  petition 
of  a  stranger,  to  inventory  assets  of  a  decedent — 7  How.  316.  So, 
one  administrator  ad  colligendum  may  compel  his  co-administra- 


IJH.  XLVI,]  ADM'kN. INSOI.VKNCY  OF  ESTATK.  321 

tor  to  do  so — and  if  the  defendant  claims  such  assets  as  his  own, 
he  may  have  the  benefit  of  an  issue  to  try  that  question.  6  Sm. 
&  M. — Compton  vs.  Compton  et  al. 

Re-opening  Commission. 

§  12.  It  has  already  been  shown  that  after  the  report  of  com- 
missioners of  insolvency  has  been  allowed,  it  will  not  for  any 
cause  be  opened  by  the  same  court,  at  a  subsequent  term — see 
iante,  sec.  9,  p.  317 — unless  the  former  orders  were  absolutely 
nuii  and  void.    5  Sm.  &  M.  354;  3  ib.  329. 

But,  it  seems,  that  where  a  claim  against  an  estate  represented 
insolvent  was  allowed  by  the  commissioners  in  full — although 
they  had  notice  of  its  being  partly  secured  by  a  mortgage,  and 
that  the  balance  only  was  claimed,  and  they  made  their  report,  it 
was  held  the  Judge  of  Probate  might  re-open  the  commission,  for 
the  correction  of  the  mistake.     16  Pick.  255, 

And  where  R.  alleging  himself  to  be  a  creditor  of  M.'s  estate, 
laid  his  claims  before  the  commissioners  of  insolvency  of  that  es- 
tate, who  rejected  them ;  R.  had  his  claims  referred  to  referees, 
who  reported  against  them  and  the  court  rejected  them.  At  a 
subsequent  term  it  was  agreed,  by  the  attorneys  of  both  parties, 
that  the  claims  should  be  again  referred  for  another  report,  and 
depositions  taken  on  both  sides.  Neither  party  objected  to  sec- 
ond reference  in  the  court  below — Held,  such  acquiescence  pre- 
cluded all  objection  to  the  second  reference.  5  Sm,  &  Marshall, 
394. 

Where  a  report  is  sent  back  by  this  court  (High  Court  of  Err, 
and  App.)  for  re-examination  on  the  facts,  by  referees  of  claims  a- 
gainst  an  insolvent  estate,  referees  can  form  their  own  estimate  of 
the  testimony.    5  Sm.  &  M.  395. 

H.  filed  his  petition  in  the  Probate  court,  alleging  the  death  of  R, 
in  1839 — report  of  insolvency  in  1840 — and  appointment  of  com- 
missioners, who  reported  in  July,  1841 — petition  of  H.  was  filed 
in  1843 — when  petitioner  became  creditor  of  R.'s  estate  by  pay- 
ing a  note  as  surety  of  R. — the  estate  being  then  undistributed. 
H.  prayed  that  the  commission  be  re-opened — held,  that  H.'s  duty 
was  to  have  paid  the  note  as  surety,  at  an  earlier  date,  or  have 
caused  the  holder  to  present  it.  Petition  refused.  5  Sm.  &  M.  364. 
41 


322  ADM'rN. — INSOLVENCY  OP  ESTATE.  [CH.  XLVI. 

In  a  conflict  of  testimony  before  referees  respecting  a  claim  a- 
gainst  an  insolvent  estate,  where  payment  was  alleged,  and  there 
were  various  and  independent  dealings  between  claimant  and 
deceased,  which  rendered  a  decision  difficult — held,  the  case  was 
peculiarly  proper  for  an  issue  before  a  jury.     Ibid.  394. 

Procttdings  before  Commissioners. 

§  13.  Commissioners  of  insolvency  on  the  estate  of  a  person  de- 
ceased, are  not  authorised  to  allow  a  claim  against  the  deceased 
which  depends  on  a  contingency,  whether  it  will  ever  become 
due.  11  Pick.  478 — and  see  5  Sm.  &  M.  354,  cited  in  preceding 
section.* 

By  the  statute  of  Massachusetts  of  1805,  actions  against  sheriffs 
for  their  own  official  wrong  and  that  of  their  deputies,  survive  a- 
gainst  their  executors  and  administrators — but  representing  the 
estate  insolvent  operates  as  a  bar  to  this  action  as  well  as  others, 
and  one  entitled  thereto  must  present  his  claim  before  the  com- 
missioners.    17  Mass.  567, 

A  surviving  dormant  partner,  who  has  a  claim  against  the  firm, 
may  lay  it  before  the  commissioners  on  the  estate  of  a  deceased 
active  partner — and  they  may  allow  it  on  condition  that  the  pay- 
ment of  it  be  postponed  till  all  the  claims  against  the  partnership 
are  paid  in  full.     11  Pick.  173. 

For  provisions  for  widow  out  of  her  husband's  insolvent  estate, 
see  How.  &H.  p.  421. 

Where  a  defendant  dies  pending  the  suit,  the  judgment  when 
obtained  is  to  be  laid  before  the  commissioners  of  insolvency,  and 
by  them  received  as  conclusive  evidence  of  the  debt. — 7  Pick.  239. 
The  whole,  including  debt  and  cost,  must  be  certified  to  the  Judge 
of  Probate  and  added  to  the  list.     11  Pick.  389. 

Where  mutual  demands  for  and  against  a  creditor  of  an  insol- 
vent estate  are  filed  before  the  commissioners  of  insolvency,  and 
they  report  a  balance  to  be  due  to  the  creditor — the  report  is  con- 


♦Under  the  New-Hampshire  statute  of  July  2d,  1822,  in  relation  to  ihe  settle- 
ment of  insolvent  estates,  there  is  no  remedy  against  the  executor  or  administra- 
tor, even  if  the  estate  turns  out,  not,  in  fact,  insolvent — and  the  claim  against 
the  estate  depended  on  a  contingency,  which  did  not  happen,  till  the  estate  was 
settled.    5  N.  H.  82. 


CH.  XLVII.]         ADM'rN. — PAYMENT  OF  DEBTS.  323 

elusive  on  either  party  who  does  not  give  notice  of  his  dissatis- 
faction, pursuant  to  the  statute  of  1784. — 4  Pick.  212. 

But  in  an  action  by  an  administrator  to  recover  a  debt  due  to 
his  intestate,  the  defendant  may  offset  a  claim,  which  he  held  a- 
gainst  the  intestate  at  the  time  of  his  death,  though  the  estate  had 
been  declared  insolvent. — 3  Stew.  151.  But  see  post,  title  "Set- 
off," for  the  rule  on  this  subject  in  Mississippi. 

§  14.  It  is  not  necessary  that  it  appear  of  record  that  the  report 
of  the  commissioners  of  insolvency  was  made  under  oath,  or  that 
the  advertisement  of  the  meeting  was  made ;  these  are  matters  of 
evidence,  and  if  not  affirmatively  stated  of  record  that  they  were 
not  done,  the  legal  presumption  is,  that  the  law  and  order  of  the 
court  have  been  complied  with,  and  the  proper  steps  taken. — 5 
Sm.&M.354. 


CHAPTER  XLVII. 

ADMINISTRATION— -PAYMENT  OK  DEBTS. 

§  1.  In  paying  debts,  the  following  order  must  be  observed, 
under  the  rules  of  the  Common  law : — 
1st.  Debts  of  record  :* 
2d.  Specialties: 
3d  Simple  contract  debts. 
But  the  rule  is  not  absolute. 

Priority  of  Claims. 
§  2.  For  specialty  debts,  he  is  bound  from  the  time  of  notice ; 
and  of  the  existence  of  debts  of  record  in  the  county  of  decedent's 
death,  or  where  he  had  recently  resided,  he  is  presumed  to  have 
had  notice.    3  B.  Monroe,  291. 


♦Funeral  expenses  necessarily  incurred,  are  preferred  to  all  others — and  physi- 
cian's fees  not  exceeding  $25. 


324  AUM'rN. PAYMENT  OF  DEBTS.  [cH.  XLVII, 

An  administrator  is  not  bound  to  take  notice  of  a  suit  in  a 
county  different  from  that  in  Avhich  the  testator  dies, — and  the 
executor  has  qualified  in — so  as  to  be  liable  if  he  disburse  the 
estate.    5  B.  Monroe,  190. 

Executors  and  administrators  are  bound  to  take  notice  of  debts 
due  by  their  testator  or  intestate,  as  administrator  or  guardian, 
where  they  qualified  in  that  county,  in  that  character,  in  the  same 
county  of  the  executor  or  administrator.    3  lb.  292. 

An  administrator  must  be  presumed  to  have  notice  of  a  note 
secured  by  mortgage.    2  Sm.  687. 

Where  there  are  two  judgments,  one  absolute,  the  other  quanda 
acciderinf,  and  afterwards  come  into  the  hands  of  the  administra- 
tor, they  must  be  applied  to  payment  of  the  first  judgment. — 1 
Hayw.  460. 

§  3.  Notice  of  a  bond  before  letters  of  administration,  is  suffi- 
cient to  prevent  the  payment  of  a  simple  contract  debt.  Notice 
need  not  be  by  suit — 2  Hayw.  334.  An  exparte  proof  of  a  debt 
before  a  magistrate,  is  of  no  avail.— -76.  (But  in  Mississippi,  such 
txparte  proof,  endorsed  on  the  specialty,  will  justify  the  admin- 
istrator in  paying  it,  if  he  will.    See  anter  sec,  1,  p.  307.) 

An  administrator  is  not  justifiable  in  paying  a  simple  contract 
debt,  after  notice  of  a  debt  by  specialty,  although  such  notice  was 
not  by  institution  of  a  suit.    3  Har.  &  M'Hen.  131. 

§  4.  An  executor,  who  has  been  sued  by  one  specialty  creditor 
cannot  pay  another,  who  has  not  sued,  in  preference  to  the  for- 
mer. Such  payment  is  a  devastavit — but  he  may  confess  judg- 
ment in  favor  of  the  latter^  and  legally  satisfy  the  judgment^  so 
confessed — 9  Dana,  343 — See  also  1  Hayw.  460.  A  judgment  ab- 
solute, must  be  paid  before  a  judgment  quando  acciderint. — lb. 

An  administrator  must  pay  debts  due  before  debts  not  due — 1 
Hayw.  411— But  see  1  Bailey,  HI. 

He  cannot  pay  legacies  before  debts — If  he  does,  he  is  liable  to» 
creditors,  tho'  discharged  by  the  Probate  court — 5  Rawle,  266.* 


*Where  an  administrator  is  ordered,  by  a  decree  of  distribution,  to  pay  mone\r 
into  the  treasury  of  the  commonwealth,  it  is  his  duly  to  make  payment  without 
any  demand  on  him.    24  Pick.  315. 

Debts  to  the  Bank  of  the  Commonwealth  in  Kentucky^  are  debts  of  supenor 


CH.  XLVII.]         ADM'rN. — PAYMENT  OF  DEBTS.  325 

An  executor  or  administrator  may  properly  apply  funds  of  the 
estate  to  remove  incumbrances  created  by  the  testator,  in  his  life- 
time, on  lands  specifically  devised  to  him,  but  may  not  purchase  in- 
cumbrances to  his  own  use.    2  B.  Monroe,  87 — See  1  Paige,  270. 

But  an  administrator  of  an  insolvent  estate  has  no  right  to  ap- 
ply assets  to  extinguish  an  incumbrance  on  the  real  estate,  for  the 
benefit  of  the  widow  and  heirs.    5  Pick.  146. 

§  5.  An  administrator  can  only  apply  the  assets  in  his  hands 
to  the  discharge  of  the  debts  and  legal  obligations  of  the  estate. 
He  may  not  pay  demands  for  which  the  intestate  was  not  liable, 
or  appropriate  the  assets  to  the  widow,  heirs,  or  any  other  person, 
however  nearly  connected  with  or  dependant  on  the  estate,  with- 
out a  decree  of  the  court  of  Probates.     10  Pick.  429;  ib.  371. 

An  executor  is  not  liable  for  a  contract  of  his  testator  made 
during  infancy,  (it  not  appearing  to  be  for  necessaries,  or  to  have 
been  confirmed  by  the  testator  after  coming  of  age,)  although  the 
testator  directed  the  payment  of  all  his  just  debts. 

§  6.  According  to  the  modem  decisions,  (though  anciently  it 
was  otherwise,)  an  executor  who  has  paid  a  debt  of  his  testator, 
may  retain  the  amount ;  at  least  for  a  simple  contract  debt — but 
not  if  he  has  merely  assumed  the  debt.  He  cannot  gain  an  ad- 
vantage over  the  specialty  creditor,  to  whom  he  was  bound  as 
surety  of  the  testator,  any  more  than  he  can  by  purchasing  any 
other  of  his  testator's  debts.  But  as  he  cannot  confess  judgment 
in  favor  of  himself,  he  would  seem  entitled  to  preference  over  a 
bond  creditor,  who  has  not  sued. 

An  executor  who  makes  a  purchase,  at  the  sale  of  his  testator's 
effects,  cannot  apply  the  amount  to  a  claim  of  his  own  against  the 
estate,  in  preference  to  claims  of  superior  dignity. — 7  Dana,  451. 
For  an  administrator  cannot  discharge  his  own  debt  in  preference 
to  others  of  superior  dignity,  but  he  may  in  regard  to  those  of 
equal  dignity.  In  some  of  the  States  where  no  difference  is 
made  in  payment  of  debts,  this  rule  does  not  apply.  5  Peters, 
304.    See  "  Marshalling  Assets." 

dignity  by  statute,  of  incorporation,  and  this  rule  is  applicable  to  a  replevin  bond 
given  before  act  paased.    7  Dana,  265. 

A  debt  due  a  citizen  by  specialty,  is  to  be  preferred  to  a  simple  contract  with 
the  commonwealth.     I  Ribb,  529. 


326  exec'rs.  and  adm'rs.  account,     [ch.  xlviii. 

If  executors  have  paid  notes  to  a  Bank,  or  the  Banks  have  ac- 
cepted the  notes  of  the  executors  in  payment  of  their  testator's 
notes,  so  that  the  executors  became  the  debtors  and  personally  re- 
sponsible to  the  Banks — the  only  effect  of  this  is,  that  the  execu- 
tors became  the  creditors  of  the  estate  in  place  of  the  Banks,  and 
may  resort  to  the  trust  fund  to  satisfy  the  debt.     10  Pet.  532. 

Subject  to  the  foregoing  rules,  if  an  executor  or  administrator 
pay  debts  of  the  estate  with  his  funds,  to  the  value  of  the  assets 
in  his  hands,  he  may  apply  such  assets  to  his  own  use,  towards^ 
satisfaction  of  the  funds  expended  for  the  benefit  of  the  estate. — 
8  Pick.  29;  2  M'Cord's  Ch.  77. 


CHAPTER  XLVIII. 

executor's  and  administrator's  account. 

§  1.  It  is  the  duty  of  every  executor  to  render  an  account  cur- 
rent of  their  administration  to  the  court  of  Probate.  The  clerk 
is  required  to  report  every  administrator  who  is  a  delinquent, 
whereupon  it  is  the  duty  of  the  court  to  cite  them  to  appear  and 
show  cause,  &c.    How.  &  H.  p.  406,  407,  sec.  73,  74. 

"  It  is  also  the  interest  of  administrators  and  executors  to  pass 
one  or  more  account  within  the  period  required  by  law.  With- 
out it,  they  cannot  form  a  true  judgment  of  what  is  left  in  their 
hands  for  administration ; — or  if  they  only  keep  an  account  them- 
selves, they  are  liable  to  mislay,  or  lose,  or  may  by  various  acci- 
dents become  dispossessed  of  the  vouchers,  which  alone  can  en- 
title them  to  an  allowance  for  disbursements.  See  "Commission- 
er's Guide,  by  Elie  Valette."  An  executor  should  make  his  aur 
nual  account  to  prevent  it  from  becoming  complicated.  2  M'- 
Cord's Ch.  R.  8. 


CH.  XLVIII,]       EXEC'rS.  and  ADM'rS.  ACCOUNT.  327 

Upon  the  death  of  an  administrator,  without  having  settled  his 
account,  it  belongs  to  his  representative,  and  not  to  the  adminis- 
trator de  bonis  non,  to  present  such  account  to  the  Judge  of  Pro- 
bate for  allowance  and  settlement.    2  Green.  75. 

What  remains  due  on  such  account  to  the  estate,  is  chargeable 
in  the  account  of  the  next  year,  and  so  on  from  one  account  to  an- 
other till  a  final  account.     Com.  Guide. 

If  the  highest  evidence  cannot  be  exhibited,  the  next  must,  and 
the  Ordinary  may  allow  the  executor  or  administrator  time  to  pro- 
duce his  vouchers,  as  evidence  of  payment.    2  M'Cord's  Ch.  R.  8. 

In  stating  his  account,  the  executor  or  administrator  must  iden- 
tify and  refer  to  the  voucher  on  which  he  intends  to  rely  in  sup- 
port of  each  item  or  charge. 

For  such  debts  as  were  due  from  the  deceased  at  the  time  of  his 
death,  and  paid  by  them  without  suit,  they  must  exhibit  vouchers 
in  the  form  required  by  the  statute  as  herein  before  set  forth,  (see 
pages  306-7)  with  the  receipt  of  the  creditor  annexed  to  or  endor- 
sed thereon.  But  as  the  statute  was  intended  only  to  protect  them 
from  the  risk  of  paying  debts  without  such  vouchers,  he  may,  if 
he  pay  a  debt  not  proved  or  allowed  in  the  mode  which  the  stat- 
ute prescribes,  justify  himself  by  proving  or  showing  the  justice 
of  the  debt  or  claim  aliunde,  to  the  satisfaction  of  the  court. 

If  an  executor,  in  good  faith,  pay  a  claim  not  authenticated  ac- 
cording to  the  statute,  the  payment  is  not  at  his  risk,  and  his  right 
to  a  credit  for  it  is  unquestionable.  3  Gill.&  John.  39 — Seeact  1846. 

Evidence  of  payment. 

§  2.  Administrators  should  be  allowed  the  amount  of  all  judg- 
ments against  them.     1  Har.  &  John.  234. 

Receipts  given  by  creditors  are  evidence  to  the  amount  specifi- 
ed as  between  the  parties  to  it,  and  also  prima  facie  against  cred- 
itors and  distributees,  subject  to  be  rebutted  by  other  evidence  or 
by  the  admission  of  the  executor,  who  may  be  required  under  oath 
to  state  the  sum  actually  paid ;  and  the  amount  of  the  receipt 
must  be  admitted,  unless  it  be  proved  that  the  administrator  had 
a  less  sum.    5  Dana,  40. 

An  acceptance  of  the  intestate,  endorsed  by  the  drawer  with  a 
receipt  to  the  administrator,  at  a  date  when  the  intestate  was  liv- 


328  EXEc'kS.  and  ADM'rs.  account.       [Cll.  XLVllI. 

ing,  is  not  such  evidence  as  will  entitle  the  administrator  to  the 
credit.    5  Dana,  480.* 

For  money  paid  to  appraisers,  a  receipt  only  is  required.  Com- 
missioner's Guide,  131. 

For  an  account  of  taxes  paid,  the  receipt  of  the  collector  is  the 
voucher,  and  must  be  produced.     1  Mass.  101. 
Ordtr  of  payment. 

§  3.  For  such  claims  as  have  originated  since  the  death  of  the 
deceased,  a  statement  of  the  items  and  the  receipt  of  the  creditor 
will  usually  be  sufficient,  and  these  must  be  exhibited  in  the  fol- 
lowing order : 

I.  Funeral  expenses — which  embrace  only  what  is  sufficient  to 
pay  for  coffin  and  sexton's  fees. 

The  allowance  for  this  purpose  will  be  proportioned  to  the  rank 
and  fortune  of  the  deceased,  so  that  the  claims  of  creditors  and 
convenience  of  the  family  of  the  deceased  do  not  suffer  by  it. — 
Commissioner's  Guide,  39.  For  small  estates,  such  charges  only 
should  be  allowed,  as  will  defray  the  cost  of  the  coffin  and  inter- 
ment of  the  deceased,  without  pomp  or  ostentation.     Ibid. 

But  if  the  deceased  in  his  will  has  directed  an  expensive  funer- 
al, and  the  claims  of  creditors  will  not  be  affected  thereby,  the 
direction  ought  to  be  pursued,  and  it  will  be  allowed  as  being  in 
the  light  of  a  legacy  paid  by  the  executor.  Ibid. — &  see  1  Har. 
&  John.  234. 

The  estate  of  a  testator  is  not  liable  for  his  widow's  funeral  ex- 
penses.    3  Rawle,  300. 

II.  Last  sickness  and  physician's  bill.t — See  10  Pick.  77. — 
Where  expense  of  bringing  the  relations  of  the  decedent,  sent 
for  by  his  wife,  to  come  and  see  him  in  his  last  sickness  at  a  dis- 
tance from  home,  was  allowed.  As  to  what  is  meant  by  last  sick- 
ness, see  8  Greenl.  167. 

III.  For  the  expense  of  cultivating  the  growing  crop,  maintain- 
ing negroes,  &c.,  under  the  statute — see  ante,  page  268. 


*  Administrators  arc  allowed  for  widow's  thirds,  whether  paid  or  not. — 1  Har. 
&  John. 234. 

t  Physician's  bills  only  preferred,  to  the  amount  of  $25.      How.  &  H.  420 — 
Acts  1833. 


CH.  XLVIII.]        EXEc'rS.  and  ADM'rS.  ACCOUNT.  329 

An  executor  or  administrator  should  exhibit  a  distinct  account 
of  each  particular  sum  expended  towards  finishing  the  crop  while 
on  hand,  specifying  the  quantity  of  each  product,  with  the  length 
of  time  the  slaves  were  employed  in  it,  and  the  real  disburse- 
ments for  maintaining  and  clothing  the  servants,  (if  any  there  be) 
— Comm.  Guide,  133 — and  allowance  made  for  finishing  the  crop. 
1  Har.  &  John.  232.  In  finishing  the  growing  crop,  an  executor 
or  administrator  is  not  bound  to  discharge  the  duties  of  an  over- 
seer. He  may  employ  and  pay  out  of  the  funds  of  the  estate  as 
many  overseers  as  are  necessary  for  the  completion  and  preserva- 
tion of  the  crop.  If  with  greater  advantage  to  the  estate,  he  acts 
as  overseer  himself,  it  is  competent  to  the  Orphan's  court  to  allow 
him 'a  reasonable  compensation  for  his  services — 6  Gill.  &  John. 
309 — and  he  may  retain  a  reasonable  compensation.  9  Conn.  10; 
3  A.  K.  Marshall,  66. 

And  executors  and  administrators  may  claim  an  allowance  for 
sums  of  money  necessarily  expended  by  them  in  clothing  and 
maintaining  slaves  unable  to  work  and  sustain  themselves — and  a 
similar  allowance  as  to  slaves  able  enough  to  work  and  maintain 
themselves. — 6  Gill.  &  John.  171.  The  allowance  of  a  sum  in 
gross,  in  an  administration  account,  without  items  or  explanations, 
is  incorrect.    4  Day,  137.  < 

IV.  Reasonable  expenses,  and  compensation  to  the  adminis- 
trator, and  debts  of  decedent.    See  4  Hen.  &  M.  57. 

V.  All  legacies  paid  by  them  under  a  will,  and  distributive 
shares. 

All  specific  legacies  will  be  allowed,  and  the  appraisement  is 
conclusive  of  the  amount.     1  Har.  &  John.  234. 

What  paymenis  allowed. 
§  4.  If  the  administrator  pay  oiF  the  debts  of  his  intestate  at  a 
discount,  he  is  entitled  to  a  credit  only  for  the  sum  paid.    4  J.  J. 
Marsh.  255;  15  Jfihn.  65. 

M.  died,  being  indebted  to  a  Bank  whose  notes  were  greatly 
depreciated,  and  his  estate  was  declared  insolvent,  and  commis- 
sioners appointed.    The  Bank  had  made  a  general  assignment  to 
assignees.    If  the  administrator  desires  to  pay  the  Bank  its  distri- 
42 


330  exec'rs.  and  adm'rs.  account,      [ch.  xlviii. 

butive  share  in  its  own  notes,  the  assignment  being  illegal,  he 
may  except  to  the  report  of  the  commissioners,  and  have  the  claim 
passed  on  by  a  board  of  referees ;  or  he  may  require  a  suit  at  law. 
and  so  frame  the  issue  as  to  reach  the  point. — 4  Sm.  &  M.  332. — 
Whether  the  administrator  could  attain  the  same  end  by  permit- 
ting himself  to  be  sued  as  for  a  devastavit,  and  setting  off  the  debt 
due  to  the  Bank  in  its  own  notes — query  ?  lUd.,  citing  6  Cow- 
en,  494. 

An  administrator  should  be  credited  in  his  account  for  the  ex- 
pense of  keeping  a  horse,  which  could  not  be  sold  on  account  of  the 
imperfection  of  the  intestate's  title.  7  J.  J.  Marsh.  190;  11  S.  & 
R.  204. 

He  may  be  also  credited  for  a  fee  paid  by  him  to  a  lawyer,  for 
defending  the  title  of  the  administrator  as  such  to  property — lb. 
6  Halst.  44 — or  for  advice  of  counsel  where  needed — 2  Penn.  R. 
419 — and  costs  reasonably  incurred  in  a  suit  are  a  proper  charge 
for  an  administrator  against  the  estate  in  his  hands. — 6  Greenl.48. 
So,  all  reasonable  charges  and  disbursements  for  the  benefit  of  the 
estate  they  represent,  and  a  reasonable  recompense  for  their  per- 
sonal trouble,  in  preference  to  the  claim  of  any  creditor  of  the  es- 
tate— 4  H.  &  M.  57 — and  they  may  retain  out  of  the  assets  the  a* 
mount,  against  both  creditors  and  distributees.  3  A.  K.  Marsh. 
66. 

An  administrator  will  be  allowed  for  taxes  paid  by  him,  for 
which  the  estate  was  bound  to  pay,  though  after  many  years  it 
did  not  clearly  appear  how  he  paid  the  same.    2  Vermont,  294. 

But  taxes  paid  by  an  administrator  on  lands  in  a  foreign  State, 
where  he  had  not  taken  out  administration,  were  not  allowed  in 
his  account. — 10  Pick.  77.  But  where,  in  good  faith,  he  paid 
taxes  on  land,  supposed  to  belong  to  the  testator  and  purchased  by 
himself,  but  the  testator's  title  to  which  proved  defective,  he  was 
allowed  such  taxes  in  his  account,  upon  his  conveying  all  his  in- 
terest in  the  lands  to  the  parties  interested  in  'the  estate,  with 
warranty  against  incumbrances  created  by  himself,. — Ibid.  He 
will  not  be  allowed  payments  made  to  redeem  lands  sold  on  ac- 
count of  his  negligence,  above  the  actual  amount  of  taxes  due 
before  sale.    4N.H.208. 


CH.  XLVIII.]        EXEC*RS.  AND  ADM'rS.  ACCOUNT.  331 

What  NOT  allowed. 

§  5.  Fees  paid  and  compensation  for  personal  services  in  the 
prosecution  of  suits  in  the  name  of  the  heirs,  relating  to  land, 
should  not  be  allowed  in  the  settlement  of  an  executor's  account 
— the  prosecution  of  such  suits  being  no  part  of  his  official  duty. 
2  Bibb,  609. 

Nor  will  he  be  allowed  for  expenses  incurred  in  an  ineffectual 
attempt  to  strengthen  the  title  to  real  estate  of  the  intestate ;  nor 
for  money  expended  by  him  in  the  repairs  of  the  real  estate,  how^- 
ever  necessary.  With  the  real  estate  or  its  title,  he  has  nothing  to 
do,  unless  the  estate  is  insolvent.    4  N.  H.  208. 

But  where  an  execution  against  an  administrator  was  extended 
on  lands  in  his  occupancy,  on  which  he  had  made  improvements, 
the  value  of  which  was  included  in  the  appraisement,  the  value 
of  such  improvements  ought  to  be  allowed  in  his  account. — 6 
Greenleaf,  139. 

Where  a  bill  in  Equity  brought  by  the  adminstrator  and  heirs 
of  the  intestate,  to  recover  land  devised  to  him,  was  discontinued, 
and  an  execution  against  them  for  costs  was  paid  by  a  stranger, 
and  not  by  the  administrator  nor  at  his  request — Held,  a  charge 
for  such  costs,  in  the  administrator's  account,  was  properly  disal' 
lowed  by  the  Judge  of  Probates. 

Where  an  administrator  employed  an  agent  to  collect  money 
for  the  estate  under  his  care,  no  resort  being  had  to  legal  process, 
and  the  agent  being  neither  a  public  officer  nor  an  attorney — 
held,  the  compensation  of  such  agent  was  not  a  charge  upon  the 
estate. — 4  ib.  453. 

An  administrator  will  not  be  allowed  for  money  expended  by 
him  for  ardent  spirits  used  at  an  auction  of  the  goods  of  the  de- 
ceased.   5  N.  Hamp.  492. 

Expenses  incurred  in  the  sale  of  lands,  in  the  state  of  Vermont, 
are  not  allowable  against  the  estate  of  the  deceased  lying  in  Con- 
necticut.    1  Root,  182. 

An  administrator  cannot  charge  in  his  account  the  expenses 
of  the  support  and  education  of  the  infant  heir  of  the  intestate. 
8  Mass,  131. 


332  exec'rs.  and  adm'rs.  account,     [ch.  xlviii, 

§  6.  The  proper  time  for  claiming  an  allowance  for  bad  or  des- 
perate debts,  by  an  administrator,  is  when  the  intestate's  accounts 
are  settled.     1 1  S.  &  R.  204— See  "  Devastavit." 

§  7.  The  items  on  the  credit  side  of  an  administrator's  account, 
may  be  expressed  in  general  terms.    6  Halst.  44. 

§  8.  There  are  many  considerations  that  may  materially  aiFect 
the  accounts  of  executors  and  administrators — which  will,  owing 
to  their  contingent  character,  fall  more  properly  under  distinct 
heads.  The  reader  is  therefore  referred  to  the  titles  of  "  Interest," 
"Commissions,"  "Devastavit,"  "Set-off,"  post. — and  "Inventory," 
and  "Assets,"  ante. 

Administrator's  oath  and  answers. 

§  9.  An  administrator,  though  bound  to  make  oath  to  the  truth 
and  correctness  of  his  accounts,  and  to  answer  such  specific  in- 
terrogatories as  may  be  put  to  him  touching  the  same,  cannot  be 
admitted,  upon  his  own  motion,  as  a  competent  witness  generally 
to  his  accounts  and  their  items — except  to  support  small  charges, 
according  to  the  usage  of  courts  of  Probate.     12  Pick.  166, 

If  an  administrator  in  answer  to  interrogatories  in  the  Probate 
court,  touching  his  account,  makes  an  admission  tending  to  charge 
himself  with  estate  omitted  in  his  account,  and  at  the  same  time 
states  a  fact  in  his  discharge  unsupported  by  proof,  such  state- 
ment is  irrelevant,  and  to  be  rejected.— -8  Pick.  484.  And  the 
party  at  whose  instance  such  interrogatories  have  been  proposed, 
may  offer  evidence  to  disprove  the  answers  of  the  administrator. 
Ibid. 

A  Judge  of  Probate  has  authority  to  examine  an  administrator 
upon  oath,  as  to  any  obligation  due  from  such  administrator  to  the 
estate  of  his  intestate.    7  Pick.  14. 

Opening  and  correcting  Annual  Accounts. 

§  10.  If  by  mistake  or  other  just  and  sufficient  cause  shown, 
an  omission  has  taken  place  in  a  partial  account,  exhibited  by  an 
administrator,  in  an  Orphan's  court,  such  omission  may  be  cor- 
rected, and  just  allowance  be  made  to  the  administrator  in  his  final 
account.— -6  Halst.  44.  Such  account  may  be  opened  for  correc- 
tion, on  petition  to  the  Judge  of  Probate,  or  on  settlement  of  a  new 
account.    9  Pick.  27 — see  also  1  Pick.  157. 


CH.  XLVIII.]        EXEC'rS.  and  ADM'rS.  ACCOUNT.  333 

Final  Settlement. 

§  11.  The  Judge  of  Probate,  besides  the  duties  enjoined  on 
him  in  term  time,  is  hereby  empowered  and  required  to  take,  re- 
ceive, and  audit  for  probate,  applications  for  administration,  in- 
ventories and  appraisements  duly  made  to  be  recorded,  to  appoint 
guardians  to  minors  of  their  own  election,  and  to  cause  to  be  is- 
sued all  citations  and  other  necessary  process  returnable  to  the 
next  term  of  said  court.  And  the  said  Judge  of  Probates  after 
examining  and  auditing  such  accounts,  and  causing  them  to  be 
properly  stated,  shall  report  the  same  for  allowance  to  the  next 
term  of  the  said  Probate  court — the  executor,  administrator,  col- 
lector, or  guardian,  giving  at  least  forty  days  notice  of  his  inten- 
tion of  having  such  account  presented  to  the  said  court  for  allow- 
ance, at  such  term,  by  posting  up  advertisement  thereof,  in  three 
of  the  most  public  places  in  the  county,  or  advertising  the  same 
for  three  weeks,  at  least,  in  some  public  newspaper  in  this  State, 
as  the  said  Judge  of  Probate  shall  have  directed.  And  the  court, 
on  due  proof  of  jiotice  as  aforesaid,  and  no  exception  being  made 
to  the  account  as  stated,  may  decree  an  allowance  thereof.  But 
if  any  person  or  persons  interested  in  the  settlement  of  said  ac- 
count, shall  by  himself,  or  attorney,  appear  and  make  exceptions 
to  the  same,  the  court  shall  either  proceed  to  hear  the  proofs  and 
allegations,  and  correct  or  amend  the  mistakes  and  errors  in  the 
account  as  reported,  or  refer  the  same  to  auditors  who  shall  exam- 
ine and  re-state  the  account,  after  hearing  parties  and  witnesses, 
and  make  report  to  the  next,  or  some  subsequent  term  of  the  court, 
as  the  said  court  shall  direct,  for  confirmation  and  allowance  as 
aforesaid.;— Acts  1821,  How. &H.  403 — amended  by  act  of  1846, 
as  follows,  to  wit : — 

Whenever  any  executor,  administrator,  or  guardian,  by  opera- 
tion of  law,  or  in  obedience  to  the  process  of  any  Probate  court 
in  this  State,  shall  render  a  final  account  of  his  administration  or 
guardianship,  the  Probate  court  having  cognizance  thereof,  shall 
cause  citations  to  be  issued  and  served  on  all  the  legatees,  heirs, 
or  distributees  of  the  testator  or  intestate,  or  upon  the  ward,  as 
the  case  may  be,  if  such  heirs,  distributees,  or  wards,  reside  with- 
in the  county  in  which  said  court  sits,  citing  them  to  be  and  ap- 
pear before  said  court,  on  a  day  certain,  not  less  tlian  forty  days 


334  exec'rs.  and  adm'rs.  account,     [ch.  xlviii. 

after  such  citation  shall  be  issued — to  show  cause  why  such  final 
jwjcount  should  not  be  allowed,  and  a  decree  made  thereupon  ac- 
cordingly;— and  whenever  such  legatees,  heirs,  distributees,  or 
ward,  shall  be  non-residents  of  this  State,  or  reside  beyond  the 
jurisdiction  of  the  court,  so  that  the  process  thereof  cannot  be  ser- 
ved on  them,  the  said  executor,  administrator  or  guardian,  shall 
make  affidavit  of  the  fact,  and  the  said  Probate  court  shall  there- 
upon cause  publication  to  be  made  in  some  newspaper  in  this 
State,  citing  said  absent  legatees,  distributees  or  wards,  to  appear 
before  said  court  on  a  day  certain,  not  less  than  sixty  days  from 
and  after  the  first  insertion  of  the  citation  or  notice,  to  show  cause 
why  such  account  should  not  be  allowed,  and  a  decree  made 
thereupon  accordingly; — and  whenever  any  of  such  legatees, 
heirs,  or  distributees,  or  said  wards,  shall  be  minors,  or  insane, 
such  citation,  as  to  them,  shall  be  served  on  their  guardians,  and 
said  publication  directed  to  said  guardian  by  name  and  character. 
And  in  case  such  minor,  or  insane  person,  shall  have  no  guar- 
dian, the  said  Probate  court  shall  appoint  a  guardian  or  guardians 
cid  litem,  residing  in  the  jurisdiction  of  said  court,  who  shall  be 
cited  as  aforesaid,  and  may  appear  in  the  cause  in  the  same  man- 
ner as  guardians  ad  litem  may  do  in  a  court  of  Equity. — Act  of 
1846,  ch.  12,  sec.  12,  p.  150,  (sheet  acts.) — See  also  ante,  sec.  6, 
p.  22. 

The  same  act  provides  that  bills  of  review  may  be  filed  before 
Judge  of  Probate,  for  the  correction  of  any  interlocutory  or  final 
decree  of  said  courts.    See  page  13,  ante. 
Effect  of  Decree. 

§  12.  Nothing  is  more  clear,  than  the  general  rule  tl^at  exparte 
settlements  of  accounts  by  executors,  in  the  Orphan's  court,  being 
within  the  acknowledged  jurisdiction  of  the  court,  are  prima  fade 
correct,  and  the  burden  of  proof  is  on  those  impeaching  them. — 
Suit  should  be  brought  recenti  facto,  in  a  reasonable  time,  and  at 
furthest,  within  the  time  prescribed  by  the  statute,  for  limitation 
of  actions  on  account,  or  else  some  excuse  shown  for  the  delay. — 
13  Peters,  381 — see  also  2  Bailey,  60. 

The  decree  of  the  court  of  Probate,  allowing  an  administration 
account,  cannot  be  impeached  collaterally,  in  an  action  on  the 
probate  bond.    The  only  remedy  for  the  party  aggrieved  is  by 


CH.  XLVIII.]       EXEC'rs.  and  ADM'rS.  ACCOUNT.  335 

appeal,  writ  of  error,  or  application  for  a  new  trial. — 4  Day,  415. 
See  1  K.  Marshall,  349.  The  court  and  not  the  jury  are  to  judge 
whether  fraud  appears  on  the  face  of  said  proceedings. — Ibid. 
See  next  section  13. 

§  13.  It  is  not  competent  for  a  court  of  Probate  to  decide,  that 
an  account  of  an  executor  is  final,  so  as  to  bar  all  further  enquiry 
into  matters  not  included  in  the  account. — 14  Pick.  345.  But  in 
Mississippi,  it  is  decided  that — A  final  account  of  an  executor  al- 
lowed by  the  Probate  court,  cannot  be  set  aside  by  the  petitioner 
except  for  fraud.  Irregularity  or  error  in  the  allowance  of  the 
account  could  only  be  corrected  by  a  writ,  or  on  appeal.  7  How. 
188;*  3  Sm.  &  M.  329.  And  it  can  only  be  excepted  to  at  the 
same  term,  when  it  is  reported  by  commissioners,  or  confirmed 
by  the  court.    Ibid. 

The  administrator  having  acquired  the  rights  of  a  distributee, 
will  not  be  allowed  to  impeach  the  final  settlement,  on  account 
of  a  mistake  which  was  at  the  time  in  his  favor,  and  against  the 
estate..    5  How.  736. 

The  confirmation  of  an  executor's  accounts  may  be  resisted  by 
any  person  interested  in  the  estate.     1  Dana,  371. 

The  amount  ascertained,  on  a  settlement  of  administrator's 
account,  as  due  by  him,  is  no  criterion  of  the  value  of  assets  that 
came  to  the  hands  of  the  administrator  de  bonis  non.  7  J.J.  Mar- 
shall, 188. 


*An  executor  who  haa  rendered  and  settled  a  final  account  in  the  Probate  court, 
will  be  entitled  to  account  further  to  the  Probate  court,  for  all  matters  arising  af- 
ter such  settlement,  while  he  continues  to  be  executor.    7  How.  188. 


336  MARSHALLING  ASSETS.  [CH.  XLIX. 


CHAPTER  XLIX. 

MARSHALLING    ASSETS.* 

A  prolific  source  of  equitable  jurisdiction,  and  one  of  much 
importance  in  the  administration  of  estates,  is  technically  termed 
"marshalling  assets;"  or  the  arrangement  of  the  funds  subject  to 
be  administered,  so  that  all  parties  who  have  equitable  claims  up- 
on them  may  receive  their  due  proportion,  notwithstanding  other 
intervening  liens  and  interests  or  claims  to  prior  satisfaction  out 
of  some  part  of  the  funds  for  administration. 

The  constitution  and  statutes  regulating  the  jurisdiction  and 
practice  of  the  Probate  courts  in  Mississippi,  have  not  abrogated, 
nor  made  concurrent  the  jurisdiction  of  equity  in  this  branch  of 
the  administration  of  estates.  The  right  to  direct  the  assets  to  be 
marshalled,  without  the  power  to  enforce  the, order,  would  be  nuga- 
tory. Without  power  to  grant  an  injunction ;  without  authority 
to  advise  the  administrator  in  the  discharge  of  his  duty,  it  would 
seem  to  follow,  even  if  the  marshalling  assets  were  not  in  its  na- 
ture essentially  an  equitable  exercise  of  power,  that  the  Probate 
courts,  deficient  in  these  indispensable  accompaniments  of  this 
feature  in  the  administration  of  estates,  could  not  undertake  juris- 
diction in  such  cases.  The  attempt  has  not  yet  been  made,  or  if 
made,  has  not  undergone  the  review  of  the  High  Court  of  Errors 
and  Appeals.!     The  recent  adjudications  of  that  court  have  a 


*This  chapter  was  prepared  by  W.  C.  Smedks,  Esq.  in  the  summer  of  1845 — 
and  as,  although  brief,  it  is  sufficiently  comprehensive  on  a  subject  merely  inci- 
dental to  the  administration  of  estates  of  decedent. — it  is  embodied  with  only  the 
addition  of  several  notes  by  the  compiler  of  this  volume. 

t  Since  this  chapter  was  written,  the  case  of  Robins  et  al.  i'*.  Norcom  et  al. — 
decided  in  the  High  Court  of  Errors  and  Appeals — has  been  reported,  by  which, 
it  is  determined,  that  "an  administrator  has  no  right  or  power  to  file  a  petition  in 
the  Probate  court,  as  to  the  mode  of  administering  the  estate."  4  Sm.  &  M.  332. 
Such  powers  belonged  to  the  English  Court  of  Chancery,  but  it  does  not  thence 
follow  that  they  belong  to  our  Courts  of  Probate. — Ibid.  This  case  involved  only 
the  question,  as  to  the  manner  in  which  the  administrator  should  pay  a  debt  due  to 
a  Bank  whose  bills  were  depreciated,  out  of  the  assets  liable  for  the  payment  of 
such  debt,  and  did  not  involve  any  question  by  which  the  usual  order  of  adminis- 
tering assets  might  be  inverted — a  question  which,  in  this  State,  where  lands  are 
equally  liable  with  the  personalty,  (the  latter  being  insufficient,)  to  the  payment 
pro  rata  of  all  debts,  can  hardly  arise.  And  by  another  statute,  the  court  may  or- 
der the  real  estate  to  be  sold  for  payment  of  debts  in  preference  to  slaves. 


CH.  XLIX.]  MARSHALLING  ASSETS.         '  337 

tendency  to  circumscribe  into  its  narrowest  limits  the  exercise  of 
judicial  power  by  the  Probate  courts ;  and  in  all  probability  will 
not  extend  to  them  the  right  to  entertain  creditor's  bills  to  marshal 
assets.  The  principles,  however,  will  be  the  same  in  whatever 
tribunal  enforced ;  and  as  an  important  part  of  the  administration 
of  assets,  need  illustration. 

In  Mississippi,  the  ground  for  the  exercise  of  this  equitable  in- 
terposition, is  to  a  great  degree  happily  avoided  by  the  abolition 
of  the  preference  which  prevailed  at  common  law  in  the  right  to 
priority  of  satisfaction  in  the  diiferent  grades  of  debt;  and  by  the 
subjection  of  the  real  estate  of  the  deceased  to  the  payment  of  all 
debts  alike ;  in  other  words,  abolishing  the  distinction  of  the  com- 
mon law  between  debts,  both  as  to  priority  of  satisfaction  and  the 
subject  matter  out  of  which  satisfaction  could  be  had. 

The  order  in  which,  by  the  common  law,  debts  of  the  testator 
are  to  be  paid,  and  for  the  payment  of  which  the  assets  of  the 
testator  were  in  their  order  liable,  has  been  stated.  The  equita- 
ble rule  of  marshalling  assets,  derives  a  ready  illustration  from 
this  distinction.  At  the  common  law,  a  specialty  creditor  had  a 
lien  on  the  real  estate  for  the  payment  of  his  debt,  and  also  a  right 
to  satisfaction  out  of  the  personal  assets,  while  a  simple  contract 
creditor  could  look  only  to  the  personalty.  If  the  latter,  however, 
were  insufficient  for  the  discharge  of  both,  equity  would  at  the 
instance  of  the  simple  contract  creditor,  force  the  other  to  his  lien 
upon  the  realty,  and  leave  the  personalty  to  the  payment  of  the 
debt  of  least  dignity.  This  is  but  an  exemplification  of  the  gen- 
eral rule  which  regulates  in  equity  the  administration  of  assets, 
and  which  indeed  is  not  alone  limited  to  that,  but  has  a  broader 
application — that  "  if  a  creditor  has  two  funds,  he  shall  take  his 
satisfaction  (if  he  may,)  out  of  that  fund  upon  which  another  cre- 
ditor has  no  lien."  1  John.  Ch.  Rep.  412;  1  Vesey,  312;  1  Sto. 
Eq.  527.*    This  rule  is  not  applied,  where  it  will  work  injustice 


•The  principle  of  marshalling  assets,  is  this — a  creditor  having  the  choice  of 
iwo  funds,  ought  to  exercise  his  right  of  election  in  such  a  manner,  as  not  to  injure 
other  creditors,  who  can  resort  to  one  only  of  those  funds.  But  if  he  in  the  exer- 
cise of  his  legal  rights,  exhausts  that  to  which  alone  other  creditors  can  resort, 
equity  will  place  them  in  his  situation,  eo  far  as  he  has  applied  their  funds  to  his 
claim.     1  Brockenb  C.C.  rep.  266.  [Note  concluded  next  page.] 

43 


33S  MARSHALLING  ASSETS.  [CH.  XLIX. 

to  the  creditor,  or  other  party  in  interest,  or  to  the  common  debt* 
or ;  nor  is  it  applied  except  in  favor  of  those  who  are  common 
creditors  of  the  same  common  debtor,  unless  some  special  equity 
intervene. 

The  rule  which  is  the  basis  of  equitable  action  in  marshalling 
assets  is,  that  every  claimant  upon  the  assets  of  the  deceased  shall 
by  any  possible  arrangement  be  satisfied  out  of  those  assets  to  the 
utmost  extent  consistent  with  the  nature  of  their  respective  claims. 
2  Fonb.  Eq.  B.  3,  ch.2.  It  is  in  the  application  of  this  rule  to  the 
various  phases  in  which  conflicting  claimants  present  themselves, 
that  this  doctrine  has  been  elucidated  and  built  up.  But  a  few  of 
its  general  features  need  be  traced. 

As  already  remarked,  virherever  the  distinction  between  debts 
and  between  realty  and  personalty  in  their  satisfaction  is  abolish- 
ed, much  ot"  this  doctrine,  so  far  as  it  relates  to  the  administration 
of  assets  merely,  is  in  a  measure  superseded. 

In  the  illustration  already  given,  it  will  be  seen  how  a  court  of 
equity  will  control  the  legal  administration  of  assets,  and  force 
the  perhaps  unwilling  creditor  to  an  election  of  the  fund  to  which 
he  will  resort ;  so  that  the  one  fund  accessible  only  to  the  other 
creditor  may  be  reached  by  him.  And  if  in  such  case,  before  the 
application  to  equity,  the  specialty  creditor  has  already  received 
satisfaction  out  of  the  personalty,  the  simple  contract  creditor  will 
be  substituted  to  all  the  rights  of  the  specialty  creditor,  as  against 
the  real  assets ;  or  if  the  specialty  creditor  insist  upon  his  legal 
right  to  satisfaction  out  of  the  personalty,  equity  will  decree  to 
the  other  creditor  satisfaction  pro  tanto  out  of  the  realty. 


In  the  application  of  this  principle,  simple  contract  creditors  will  be  substituted 
for  specialty  creditors,  but  not  for  judgment  creditors.  That  is,  the  simple  con- 
tract creditor  cannot  charge  the  lands  for  so  much  of  the  personal  funds,  as  has 
been  applied  to  the  payment  of  debts  due  by  judgments  obtained  against  the  an- 
cestor. The  reason  is,  that  the  writ  of  elegit,  by  which  the  land  is  charged  by  the 
judgment  against  the  ancestor,  does  not  issue  simply  against  the  land,  but  against 
all  the  chattels,  (save  oxen  and  beasts  of  the  plough,)  and  if  the  chattels  be  suffi- 
cient, the  land  ought  not  to  be  extended.  The  judgment  creditor,  therefore,  has 
not  the  election  between  two  funds,  (as  the  specialty  creditor  has,)  and  the  prin- 
ciple on  which  assets  are  marshalled,  does  not  apply  to  the  case. — Ibid.  When 
payments  have  been  made  by  an  executor  to  the  vendor  of  land  purchased  by  the 
ancMtor,  the  lien  of  the  vendor  will  be  marshalled. — Ibid. 


CH.  XLIX.]  MARSHALLING  ASSETS.  339 

A  mortgage  creditor  upon  real  estate,  who  has  received  satis- 
faction of  his  debt  out  of  the  personalty,  will  be  subjected  to  the  op- 
eration of  the  same  principle.  The  simple  contract  creditor  will 
take  his  place  in  the  mortgage  as  to  the  land  bound ;  and  may 
even  force  the  heir  to  refund  so  much  of  the  personal  assets  as 
were  applied  to  the  mortgage.    2  Vern.  763;  1  Sto.  Eq,  531. 

Legatees,  in  equity,  are  entitled  equally  to  the  benefit  of  this 
rule.  If  the  personalty  be  exhausted  by  the  specialty  creditors, 
they  will  be  substituted  to  their  rights  against  the  realty  descend- 
ed to  the  heir ;  and  in  like  manner,  to  the  rights  of  the  mortgagee 
of  real  estate,  who  has  exhausted  the  personalty  in  the  satisfaction 
of  his  mortgage.  If  however  the  unmortgaged  realty  be  devised, 
the  devisee  will  hold  it  against  such  right  to  substitution  on  the 
part  of  the  legatee,  because  he  is  equally  the  object  of  the  testa- 
tor's bounty.  The  mortgaged  realty,  however,  if  devised  will  still 
be  subject  to  the  rule  if  the  mortgage  debt  be  satisfied  out  of  the 
personalty,  because  the  mortgage  was  a  lien  on  the  land,  and  the 
devisee  took  subject  to  it. 

It  is  under  the  application  of  the  same  rule  that  legatees,  where 
land  is  devised  to  pay  the  debts  of  the  testator,  and  the  simple 
contract  debts  have  been  paid  out  of  the  personalty  and  exhaust- 
ed it,  will  be  entitled  to  stand  in  the  place  of  such  simple  contract 
debts,  in  the  right  to  satisfaction  out  of  the  lands  devised  for  pay- 
ment of  debts.  So  also  in  case  a  specific  legacy  be  incumbered 
by  mortgage  or  pledged  by  the  testator,  he  will  if  the  executor 
have  with  the  personalty  discharged  debts  of  a  higher  grade  hav- 
ing a  right  to  satisfaction  out  of  a  different  fund,  be  entitled  to 
stand  in  the  place  of  the  debt  so  satisfied  in  its  claim  upon  such 
fund. 

Equity  will  by  operation  of  the  same  principle  protect  the 
wearing  apparel  and  paraphernalia  of  the  widow  from  the  credit- 
ors of  her  deceased  husband.  Indeed  her  necessary  wearing  ap- 
parel is  not  liable  at  all  to  the  satisfaction  of  her  husband's  debts. 
But  her  paraphernalia  are.  Equity  will,  however,  at  her  instance, 
compel  creditors  entitled  to  proceed  against  the  real  estate  to  re- 
sort to  it,  rather  than  the  paraphernalia ;  and  if  the  latter  have 
been  actually  taken  by  such  creditors,  the  widow  will  be  allowed 
to  stand  in  their  place. 


340  DEVASTAVIT.  [CH.  L. 

Heirs  and  devisees  also,  in  many  instances,  reap  the  benefit  of 
this  rule. 


CHAPTER   L. 


DEVASTAVIT. 


§  1.  Reasonable  care  and  diligence  are  expected  from  execu- 
tors and  administrators.  Watchfulness  ought  ever  to  be  brought 
to  the  fulfilment  of  the  trust.  When  these  qualities  have  been 
exercised,  they  will  not  be  held  responsible  for  losses,  which 
prudent  management  could  not  foresee,  or  avoid.  Nor  will  they 
be  charged  with  gains  which  the  like  conduct  on  their  part  has 
failed  to  realize.    6  Halst.  145. 

The  rule  is,  not  to  hold  them  liable  on  slight  grounds,  where 
they  have  intended  fairly  to  do  their  duty — 4  Gill.  &  John.  453; 
2  Hill's  Ch.  R.  364 — As,  where  they  act  fairly,  but  under  a  mis- 
take— as  by  surrendering  a  term  on  the  supposition  it  was  forfeit- 
ed, for  less  than  it  was  worth. — 2  John.  Cas.  376.  But  if  he  dis- 
covers his  mistake,  before  the  surrender  is  complete,  it  will,  if 
then  made,  be  a  devastavit. — Ibid.  To  render  an  executor  or  ad- 
ministrator liable,  it  must  appear  that  he  has  been  guilty  of  fraud 
or  gross  negligence.    4  B.  Monroe's  R.  309. 

5  2.  An  administrator  is  presumed  to  have  notice  of  judgments, 
in  force  against  his  intestate  at  the  time  of  his  death — in  the  coun- 
ty in  which  he  qualified — and  in  which  his  intestate  was  domi- 
ciled, or  had  resided  within  one  year  preceding ; — but  notice  of 
all  other  judgments  must  be  proved  like  other  facts  aliunde. — 5 
Dana,  353.  And  an  executor  or  administrator  is  not  liable  for 
paying  a  debt  of  inferior  dignity,  without  notice,  actual  or  con- 


CH.  L.]  DEVASTAVIT.  341 

structive,  of  such  judgment. — 5  Dana,  353  *  So,  where  he  pays 
a  farol  debt,  having  no  notice  of  a  hovd  debt.    Ih.  351. 

An  administrator  who  permits  judgment  on  a  bond,  without 
pleading  a  previous  outstanding  judgment,  is  as  much  liable  as 
if  he  had  'paid  the  latter.  5  Dana,  351.t  See  3  A.  K.  Marshall, 
66. 

Where  a  decedent's  estate  is  solvent,  (including  his  real  estate,) 
and  his  administrators  neglect  to  apply  for  a  sale  of  the  real  es- 
tate, and  pay  out  all  the  personal  estate  to  one  creditor,  to  the  ex- 
clusion of  the  rest — Htld :  this  is  a  devastavit,  and  the  judgment 
must  be  de  bonis  testatoris,  notwithstanding  the  plea  of  phne 
administravit,  which,  in  Ohio,  is  an  immaterial  plea.  5  Ham. 
87. 

Paying  debts  of  inferior  dignity,  is  not  a  devastavit  if  the  ex- 
ecutor retains  sufficient  assets  to  pay  those  of  a  superior  dignity. 
4  CaU,  308. 

Where  judgment  was  rendered  against  an  executor  dt  bonis, 
with  execution  to  be  levied  on  lands  of  the  deceased  for  a  certain 
sum,  it  is  judgment  dt  terris,  and  not  evidence  of  devastavit  a- 
gainst  the  executor,  on  return  of  nulla  bona,  where  levy  has 
been  made  on  lands  and  part  of  the  money  received.  10  S.  &  R. 
348. 

If  an  executor  apply  the  assets  of  an  estate,  to  the  payment  of 
younger  judgments,  leaving  an  older  one  unsatisfied,  it  amouts  to 
a  devastavit,  and  scire  facias  will  lie  concurrently  with  an  action 
of  debt,  but  the  sci.fa.  must  allege  that  enough  assets  came  to 
the  hands  of  the  executor  to  discharge  the  judgment,  and  plain- 
tiff can  only  have  judgment  of  such  assets.  The  defendant  is 
not  precluded  by  former  judgment  from  plea  of  plene  adminis- 
travit.  2  Lomax  on  Ex'rs.  450,  452;  6  How.  100,  cited  in  Black 
&  Robinson  vs.  Barton  Ex'r.,  6  Sm.  &  M. 

If  an  executor  or  administrator  lets  judgment  go  by  default 
against  him,  it  amounts  to  a  confession  of  assets ;  and  if  he  do  not 


•Judgments  on  which  a  year  and  a  day  have  elapsed  without  any  execution, 
do  not  operate  conttruclive  notice.    5  Dana,  359. 

tAn  agreement  at  the  foot  of  a  judgment  against  the  executors  of  an  executor, 
that  neither  they  nor  the  deceased  executor  shall  be  liable  for  the  judgment,  is  a 
bar  to  any  suit  for  a  devattavit,  but  to  a  recovery  of  assets.    3  B.  Monroe. 


342  DEVASTAVIT.  [CH.  L. 

pay  the  execution  or  produce  assets,  he  is  guilty  of  a  devastavit, 
whereby  he  subjects  himself  to  an  action  of  debt  on  the  judgment, 
to  be  satisfied  out  of  his  own  goods  and  chattels.  Hardin,  404; 
Breeze,  179;  3  Stew.  285. 

In  Mississippi,  the  common  law  rule,  in  relation  to  assets  pre- 
sumed, does  not  strictly  obtain  against  executors  and  administra- 
tors. Judgment  and  proof  of  assets,  are  only  prima  facie  evi- 
dence, which  he  may  rebut  by  showing,  that  he  had  no  assets  in 
his  hands  unadministered,  although  the  estate  is  not  reported  in- 
solvent.   7  How.  116. 

The  decree  of  a  court  of  Equity,  that  complainant  recover  a 
sum  certain  of  an  administrator,  and  have  execution  of  the  estate 
in  his  hands  to  be  administered,  is  not  alone  sufficient  evidence  to 
establish  a  devastavit.    2  How.  617. 

Where  an  administrator  after  judgment  against  him  as  such, 
discovers  new  debts,  and  thereupon  represents  the  estate  insol- 
vent, and  proceeds  regularly  under  the  commission,  the  return  of 
nulla  bona  on  the  execution  does  not  support  a  suggestion  of 
waste.    5  Greenl.  45. 

§  3.  An  executor  or  administrator  who,  in  good  faith,  permit- 
ted the  surviving  partner  of  his  intestate  to  sell  the  partnership 
stock  in  the  usual  course  of  trade,  and  forebore  to  call  on  the  court 
for  its  direction,  he  was  not  responsible  to  the  creditors  for  any 
loss  sustained  in  carrying  on  the  business— -4  John.  Ch.  R.  619 — 
Aliter,  if  the  administrator  of  the  deceased  partner,  put  into  trade 
the  assets  which  he  had  in  possession. — Ibid. 

See  also  the  case  of  Searles,  surv'r.  &c.— -3  Sm.  &  M. — cited 
p.  13,  ante. 

§  4.  If  executors  or  administrators  suffer  debts  to  be  lost  by  wil- 
ful negligence,  or  want  of  ordinary  care  or  diligence,  they  are  lia- 
ble for  a  devastavit.  Toller,424, 430;  11  Wend.  361;  1  Randolph, 
113;  9  Mass.  74;  1  Har.  &  Gill.  88;  lOYerg.160. 

But  they  are  not  chargeable  with  money  which,  with  reasonable 
diligence,  they  have  not  collected. — 1  Iredell,  332.  If  there  be 
no  wilful  misconduct  nor  fraud,  they  will  not  be  chargeable.-— 3 
Sm.  &  M.  625.  Generally  they  are  not  liable  till  they  have  re- 
ceived the  money.    Ibid. 


GH.  L.]  DEVASTAVIT.  343 

Where  an  administrator  delayed  bringing  suit  on  a  note  till 
about  seven  years  after  the  intestate's  death,  he  was  held  liable 
for  the  amount.    6  Watts,  250;  7  Dana,  461 . 

And  an  administrator  omitting  to  recover  debts  due  securities, 
which  came  into  his  hands,  by  a  solvent  debtor  in  another  State, 
is  liable  for  the  amount  of  such  note.     3  Paige's  R.  182. 

An  administrator  is  presumed  to  have  received  the  amount  of 
notes  taken  by  him  on  sale  of  his  intestate's  property  on  a  credit, 
unless  the  contrary  appears.— 3  Sm.  &  M.  473.  But  he  will  not  be 
held  liable  beyond  the  amount  collected,  if  he  shows  that  he  took 
security  good  at  the  time,  and  the  loss  occurred  by  unavoidable  cas- 
ualty.— Ibid.  If  the  administrator  has  failed  to  return  an  inven- 
tory, or  has  received  and  converted  to  his  own  use  the  profits  of 
the  estate,  or  squandered  them,  he  is  liable  on  his  bond.  2  How. 
822.* 

§  5.  Where  an  administrator  has  made  a  compromise  of  a  debt 
intended  for  the  benefit  of  an  estate,  and  which  has  been  actually 
beneficial  to  such  estate,  he  ought  not  to  be  charged  with  the  debt 
in  his  account.    9  S.  &  R.  211;  3  Har.  &  John.  106. 

An  administrator  may  release,  compound  or  novate  a  debt,  and 
if  he  acted  for  the  benefit  of  the  estate,  he  will  not  be  held  liable. 
3  Sm.  &  M.  625.  But  now  by  act  of  1846,  ch.  12,  sec.  6— it  is 
directed  that  "the  Probate  court  may  order  any  executor  or  admin- 
istrator, who  has  given  bond  and  qualified,  or  who  may  hereafter 
give  bond  and  qualify,  in  any  of  said  courts,  to  act  as  such,  to  sell 
or  compromise  any  claim  or  claims  due  the  estate  of  his,  her  or 
their  testator  or  testatrix — Provided,  however,  that  said  executor 
or  administrator,  shall  first  file  his  or  their  petition  in  said  court, 
setting  forth  distinctly,  the  facts  on  which  the  application  is  based. 
And  it  shall  be  made  to  appear,  to  the  satisfaction  of  said  court, 
by  the  affidavit  of  said  petitioner,  or  by  other  competent  or  legal 
evidence,  that  such  order  of  sale  or  compromise  will  promote  the 
interest  of  said  estate."  And  by  sec.  7,  of  the  same  act,  it  is  fur- 
ther directed,  "that  no  order  of  sale  or  compromise  shall  be  made 
before  the  term  of  the  court  next  succeeding  that  at  which  the 
petition  is  filed  for  that  purpose,  nor  until  notice  shall  have  been 

*0f  the  averment  necessary  to  establish  a  devastavit — see  6  Howard,  93. 


344  DEVASTAVIT.  [CH.  L. 

given  in  some  newspaper  printed  in  the  county,  if  there  be  one, 
and  if  not,  at  the  Court-House  door  and  two  other  public  places 
in  the  county,  for  at  least  twenty  days,  of  the  character  of  the  ap- 
plication, distinctly  specifying  the  claim  or  claims,  intended  to  be 
sold  or  compromised.  Nor  shall  any  order  of  sale  or  compromise 
of  claims,  under  the  provisions  of  this  act,  be  made  until  after  the 
lapse  of  twelve  months,  from  the  time  at  which  the  letters  testa- 
mentary or  of  administration  were  granted.  And  by  sec.  8,  of 
same  act,  it  is  further  directed,  "that  all  sales  made  under  and  by 
virtue  of  the  provisions  of  this  act,  shall  be  for  cash,  at  the  court- 
house door,  on  the  day  prescribed  by  law  for  sheriffs'  sales — 
Provided,  that  notice  of  the  time  and  place  of  sale,  distinctly  spe- 
cifying the  claim  or  claims  intended  to  be  sold,  shall  be  posted 
at  the  door  of  the  court-house,  and  be  published  in  some  news- 
paper in  the  county,  if  there  be  one,  twenty  days  previous  to  the 
sale." 

And  by  sec.  9,  of  same  act,  it  is  further  directed,  "that  within 
ninety  days  after  a  sale  or  compromise  made  as  aforesaid,  a  report 
under  oath,  shall  be  made  in  court  by  the  executor  or  administra- 
tor, as  the  case  may  be,  stating  explicitly  the  terms  of  compro- 
mise or  sale,  which  report  shall  stand  for  exceptions,  until  the 
term  next  succeeding  the  return  thereof. — And  for  reasonable 
cause  shown,  said  report  may  be  disallowed,  and  said  sale  or 
compromise  be  set  aside  or  vacated." 

The  eifect  of  this  statute,  would,  it  seems,  prohibit  a  compro- 
mise of  any  claim  by  an  executor  or  administrator  in  any  manner, 
except  what  is  therein  prescribed. 

§  6.  If  an  executor  or  administrator  creates  a  debt  to  the  estate, 
which  is  lost,  he  must  show  that  the  debt  was  such  as  a  prudent 
man  in  his  own  business  would  have  made,  and  that  reasonable 
and  timely  exertions  had  been  made  to  collect  it. — 4  B.  Mon.  74. 
And  the  same  exertions  must  be  proved  as  to  debts  due  at  testa- 
tor's death. — Ibid,    See  sec.  4,  ante. 

§  7.  If  an  executor  or  administrator  pass  a  debt  for  which  the 
estate  of  the  deceased  is  not  liable,  it  is  a  devastavit.  10  Yerger, 
160. 

So,  if  executor  being  also  the  testamentary  guardian,  pays  mon- 
ey in  his  own  wrong.    Ibid. 


CH.  L.]  DEVASTAVIT.  345 

It  will  be  waste,  not  to  plead  the  special  statute  bar  olfour  years; 
but  it  is  otherwise  of  the  general  statute  of  limitations.  13  Mass. 
201;  16  ib.  172,  429;  5  Pick.  140. 

And  if  an  administrator  release  a  claim  to  which  he  knew  his 
intestate  was  entitled,  he  is  liable  for  a  devastavit,  though  such 
release  was  executed  in  completion  of  a  prior  mistake  on  the  part 
of  the  administrator.    2  John.  Cas.  376, 

If  an  administrator  be  guilty  of  neglect  or  corruption  in  not  op- 
posing the  admission  of  illegal  claims,  by  the  commissioners  of 
an  insolvent  estate,  it  seems  he  will  be  liable  in  a  special  action 
on  the  case  for  waste.    2  Mass.  80. 

And,  if  by  the  fault  of  the  executor  in  not  collecting  personal 
estate,  or  in  not  applying  it  to  the  payment  of  debts,  lands  are  ta- 
ken from  the  heir  or  devisee,  he  is  liable  to  the  party  injured,  in 
an  action  of  waste.    4  Mass.  654. 

By  act  of  1846,  ch.  12,  sec.  13,  p.  150,  it  is  enacted,  that  "in 
addition  to  the  rules  heretofore  prescribed  and  now  in  force  for 
the  proof  of  claims  against  the  estates  of  decedents,  hereafter  it 
shall  not  be  lawful  for  any  Judge  of  Probate  in  this  State  to  allow 
any  claim  upon  open  account,  nor  for  any  executor  or  adminis- 
trator to  pay  the  same,  unless  the  contract  or  transaction,  upon 
which  such  open  account  is  founded,  shall  be  first  proved  before 
such.  Judge  of  Probate,  by  competent  testimony,  in  addition  to  the 
affidavit  of  the  complainant,  noAv  required  by  law — Provided, 
that  this  section  shall  not  apply  to  claims  of  a  less  amount  than 
twenty  dollars."    See  ante  307,  308. 

No  credit  should  be  allowed  to  administrator  for  debts  repre- 
sented to  be  due  from  insolvent  persons,  without  proof  of  the  in- 
solvency, and  that  the  debts  have  not  been  lo^  in  consequence  of 
his  wilful  default— -4  Dana,  618 — And  where  notes  and  accounts 
are  contained  in  the  inventory,  the  administrator  should  distinct- 
ly state  which  have  been  paid,  and  the  cause  why  those  not  col- 
lected were  lost — which  must  be  a  satisfactory  one. — Ibid.  619. 
If  the  administrator  does  not  distinguish  in  his  inventory  good 
from  bad  debts  all  will  be  presumed  good— -1  Hayw.481 — unless 
he  show  due  diligence  to  collect. — Ibid.  See  ante  sec.  4. 
44 


346  DEVASTAVIT.  [CH.  L, 

§  8.  An  administrator  is  not  liable  if  a  factor,  (who  is  respect- 
able,) sold  goods  on  a  few  days  credit,  and  the  purchaser  failed. 
2M'Cord'sCh.R.  450. 

If  an  administrator  be  directed  to  sell  at  auction,  on  credit, 
bearing  interest,  and  sell  at  private  sale,  he  is  chargeable  with  the 
difference  between  a  credit  and  cash  price. — 5  Munf.  183.  So, 
if  he  suffers  the  widow  or  any  of  the  representatives  to  take  arti- 
cles at  their  appraised  price  less  than  their  real  value.  Toller, 
427. 

And  if  the  sale  be  collusive  to  enable  a  party  interested  to  buy 
at  less  than  a  fair  price,  the  executor  or  the  administrator  is  re- 
sponsible. 2  Tuck.  Com.  406;  Toller,  427;  2  M'Cord's  Ch.  R. 
430. 

But  on  an  order  of  sale  bearing  interest,  the  executor  or  ad- 
ministrator may  immediately  receive  the  purchase  money. — 4 
Gill.  &  John.  461. 

§  9.  An  administrator  has  no  right  to  involve  the  estate  of  his 
intestate  in  the  risk  of  trade.  Therefore,  where  he  shipped  wine 
belonging  to  the  estate,  to  the  West  Indies,  and  it  netted  less  than 
value  here,  he  was  held  accountable  for  the  difference.  1  S.  &  R. 
241.  And  where  an  executor,  being  one  of  a  trading  firm,  mixed 
the  funds  of  the  testator  with  those  of  the  firm,  and  they  were 
thus  employed  in  trade — Held:  the  firm  were  liable  to  a  legatee. 
9  Cowen,  320.  And,  this  although  the  funds  were  carried  to  the 
executor's  account,  and  the  account  as  to  them  closed  in  the  part- 
nership books.     Ibid* 

§  10.  Where  an  administrator  makes  distribution  and  debts  af- 
terwards appear,  he  is  liable  for  a  devastavit,  and  must  look  for 
his  indemnity  to  the  distributees,  and  if  he  took  no  bond  he  must 
abide  the  consequences.     1  Dana,  514. 

Advances  made  by  an  administrator  to  provide  for  the  wants 
of  the  infant  children  of  an  intestate,  till  the  appointment  of  a 
guardian,  though  not  properly  a  charge  on  the  estate — and  though 


^But  it  is  the  duty  of  the  executor  to  keep  money  of  the  estate  properly  invest* 
ed — 2  Wend.  77 — If  they  do  not,  they  are  liable  for  interest. — Ibid.  If  robbed  of 
money,  he  will  be  exonerated.     1  C.  C.  E.  96. 


CH.  L.]  DEVASTAVIT.  347 

regarded  as  gratuitous,  unless  charged  in  the  accounts  filed  with 
the  Ordinary — yet  form,  when  so  charged,  a  charge  on  the  distri- 
butive shares  of  the  children.     1  Bailey,  7. 

Where  the  heirs  of  one  who  died  intestate,  supposing  that  all 
the  debts  had  been  paid  by  the  administrator,  divided  the  real  es- 
tate among  them — after  which,  one  of  them  cut  wood  and  timber 
on  the  land  to  a  large  amount,  it  was  held,  in  a  suit  against  the 
administrator  on  his  bond,  brought  by  a  creditor,  that  it  did  not 
constitute  waste  in  the  administrator,  and  that  he  was  not  bound 
to  account  for  the  value  of  the  wood  and  timber  cut — though  such 
estate  ultimately  proved  insolvent,  and  though  the  administrator 
was  one  of  the  heirs  and  participated  in  the  division.  1  Fairt 
365. 

No  contract  arises  upon  a  devastavit  that  will  support  an  action 
agaist  the  ^executor  personally.     12  S.  &  R.  58. 

And  a  judgment  against  an  executor  or  administrator,  in  his  in- 
dividual and  not  in  his  representative  capacity,  will  not  support 
an  action  founded  on  a  devastavit.    4  Halst.  379. 

In  an  action  against  an  administrator  for  a  devastavit,  founded 
on  a  contract  made  before  the  Kentucky  statute  of  1821,  the  ad- 
ministrator is  liable  for  property  sold  as  assets,  which  would  be 
exempted  by  that  statute.  (See  act  of  Mississippi,  exempting 
certain  property  from  execution  for  debt—How.  &  H,  p.  634) — 
Act  1839,  p.  33. 

§  11.  An  executor  may  also  be  charged  with  interest,  in  cer- 
tain cases  of  misfeasance  whereby  interest  has  been  lost,  which 
he  might  have  realized. 

In  general,  an  administrator  should  not  be  charged  with  inter- 
est on  funds  which  belong  to  the  estate,  till  the  expiration  of  the 
nine  months,  within  which  he  cannot  be  sued.  For  the  law  al- 
lows him  this  period  in  order  that  he  may  ascertain  the  condition 
of  the  estate.  But  if  after  this  period,  without  any  good  reason, 
he  permits  money  to  lie  on  hand,  he  will  make  himself  thereby 
liable  for  interest.  So,  also  if  he  at  any  time  make  use  of  the 
money  of  his  intestate,  he  will  be  chargeable  with  interest. — 
Numerous  examples  of  this  rule  will  be  found  under  the  head  of 
"  Interest,"  post. 


348  SET-OFF.  [CH.  LI. 

§  12.  Where  a  judgment  has  been  rendered  for  a  devastavity 
the  order  should  be  against  the  executors  and  administrators  and 
sureties,  to  be  satisfied — 1st,  of  the  assets  of  the  deceased ;  2d,  of 
the  proper  goods  of  the  administrators,  then  of  the  sureties ;  3d, 
of  the  estate  descended  to  the  heirs,  if  necessary.  3  B.  Monroe, 
217. 


CHAPTER  LI. 


SET-OKF. 


§  1.  An  executor  or  administrator  may  retain  for  his  own  claim 
on  his  testator  or  intestate,  against  persons  holding  claims  of  equal 
dignity  with  his  own. 

This  rule  is  founded  in  the  idea  that  a  mutual  indebtedness 
creates  a  compensation,  or  payment  of  both  debts,  at  the  instant 
when  the  mutual  liability  arises — except  only  as  to  the  excess  of 
the  amount  of  one,  over  that  of  the  other  claim  or  liability — and 
also  upon  the  impossibility  of  the  creditor  suing  himself,  and  thus 
like  other  creditors  acquiring  a  preference.  Tucker's  Comm. 
Book,  2,  414-^  Dev.  103. 

This  right  prevails  even  where  the  debt  from  the  administrator 
is  due,  and  the  other  is  not. — 3  Burr.  1380.  So,  where  he  has 
another  person  bound  to  him  as  surety  of  the  decedent,  and  al- 
though the  debt  to  him  as  executor  of  another  and  from  him  in- 
dividually— and  even  though  his  letters  be  repealed  on  applica- 
tion of  next  of  kin ;  and,  in  all  cases  where  he  would  be  justified 
in  paying  it  to  another — he  may  retain.    Toller,  296. 

If  one  of  several  joint  executors  have  a  claim  against  the  estate, 
he  cannot  compel  his  co-executors  to  allow  and  credit  it  before 
the  Ordinary,  but  must  resort  to  a  court  of  Equity.     1  South.  189. 


CH.  LI.]  SET-OFF.  349 

§  2.  Any  debtor  demand,  which  constitutes  a  legal  set-off  for 
or  against  a  decedent,  is  equally  so  for  or  against  his  executor  or 
administrator — who  will  not  be  guilty  of  a  devastavit,  •  though 
judgments  and  bonds  exist  against  the  estate  if  he  allows  simple 
contracts /rom  decedent's  estate,  to  be  set  off  against  debts  of  supe- 
rior dignity  to  the  estate,  where  the  set-oflf  could  have  been  enforced 
against  the  decedent  during  his  life-time. — 5  Dana,  400.  Nor  can 
an  administrator  be  made  liable  for  a  devastavit,  where  as  such 
he  holds  demands  of  his  inetstate  against  a  creditor  exceeding  the 
demand  set  up  against  him.     5  B.  Monroe,  90. 

In  an  action  by  an  executor,  on  a  writing  purporting  to  have 
been  executed  upon  a  settlement  with  the  testator,  the  defendant 
upon  showing  a  mistake  in  the  settlement,  may  set  off  any  debt 
due  from  the  testator  to  him — for  which  an  indeb.  assumpsit 
would  lie.     1  Marshal,  19. 

Debts,  to  be  set  off,  must  be  in  the  same  right.  Therefore, 
where  suit  was  brought  on  a  note  given  by  A.  administrator  of  C. 
which  was  assigned  by  B.  to  D.,  A.  was  not  permitted  to  set  off 
a  note  given  by  B.  to  E.,  and  by  him  assigned  to  A.  the  defend- 
ant.    1  Murphy,  353. 

One  of  two  executors  cannot  transfer  by  indorsement  a  negotia- 
ble promissory  note  made  to  the  two  as  executors,  for  a  debt  due 
to  the  testator.    9  Mass.  334. 

§  3.  Claims  purchased  after  the  testator's  death,  are  no  oflf-set 
against  claims  due  to  him  before  his  death.  20  John.  R.  137;  2 
Bibb.  262;  1  Wash.  221. 

But  an  administrator  may  retain  assets  to  satisfy  a  debt,  due  to 
himself  on  a  note  of  his  intestate,  indorsed  to  him  after  the  death 
of  the  intestate,  but  prior  to  grant  of  administration.  1  Hawks, 
318. 

As  against  a  debt  due  to  the  deceased  at  his  death,  a  note  of 
the  decedent  paid  by  his  surety  or  endorser  after  his  death,  is  not 
a  good  off-set  in  a  suit  by  executor  or  administrator  against  the 
latter — So,  vice  versa.    2  Hill's  R.  210. 

§  4.  A  claim  against  an  administrator  in  his  representative  ca- 
pacity, cannot  be  set  off  against  one  sued  on  in  his  individual  ca- 
pacity.   9  Pick.  265. 


350  SET-OFF.  [CH.  LI. 

But  in  an  action  by  an  administrator  for  a  debt  due  to  his  intes- 
tate, the  defendant  may  set  off  a  demand  for  money  paid  by  him 
to  defray  the  funeral  expenses  of  the  deceased.     16  Pick.  343. 

A  judgment  against  an  administrator  is  a  set-off  against  a  judg- 
ment obtained  by  him  in  right  of  his  intestate ;  and  where  there 
are  no  assets  in  the  administrator's  hands,  equity  will  set  off  other 
debts  for  which  there  is  no  judgment,  no  outstanding  debt^  of  su- 
perior dignity  appearing. — 4  Bibb.  356;  5  Monroe,  181.  But  if 
such  superior  debt  appear  exceeding  assets,  the  court  will  not  off- 
set a  debt  of  the  intestate  against  a  claim  of  the  administrator. — 
4  Bibb.  566 

A  demand  against  the  intestate  is  no  set-off  against  a  bond  giv- 
en to  the  administrator.    Hardin,  252. 

But  a  purchaser  of  lands  of  an  intestate  sold  under  an  act  of 
assembly  by  commissioners,  for  money  to  be  collected  and  paid 
over  to  administrators,  may  set  off  in  equity  a  judgment  against 
the  administrators  as  such,  which  he  could  not  make  by  execu- 
tion against  the  other  assets,  and  may  enjoin  a  judgment  for  such 
purchase  money  recovered  by  the  commissioners,  especially  as 
the  party,  after  the  return  of  no  assets,  might  subject  choses  in  ac- 
tion by  suit  in  equity  under  the  statute.    4  Monroe,  1. 

§  5.  In  an  action  by  the  administrators  of  an  insolvent  estate, 
against  two,  upon  a  joint  debt,  the  defendants  are  not  allowed  to 
set  off  their  several  claims,  allowed  by  the  commissioners  of  in- 
solvency, against  the  insolvent  estate.     18  Pick.  403. 

Where  one  of  two  joint  plaintiffs  assigns,  (for  himself  and  as  a- 
gent  of  his  co-plaintiff,)  a  judgment  in  their  favor,  the  defendant's 
administrator  cannot  set  off  a  debt  due  by  one  of  them  to  his  de- 
cedent— 2  Sumner's  Ct.  Ct.  R.  409 — But  if  in  favor  of  two  part- 
ners, and  one  dies,  a  claim  against  the  survivor  may  be  set  off. — 
1  Hay.  471. 

§  6.  Where  an  estate  is  insolvent,  a  claim  against  the  testator 
or  decedent,  subsisting  at  the  time  of  his  death,  is  a  good  off-set 
for  the  holder  against  a  claim  of  the  decedent  against  him. — 2 
Hill's  R.  210;  1  Murph.  353;  2  Mass.  498;  15  ib.  389,  407;  3 
Pick.  452, 460;  4  ib.  212,  215.  (The  decisions  in  Massachusetts 
are  founded  on  a  statute  which  considers  the  balance  due  on  an 
adjustment  of  mutual  claims,  to  be  the  amount  due.) 


CH.  LI.]  SET-OFF.  361 

And  if  a  creditor  liaving  a  balance  against  an  insolvent  estate, 
fail  to  prove  his  claim  before  the  commissioners,  he  may  never- 
theless oif-set  it  against  the  insolvent's  claim  against  him. — 2 
Mass.  498. 

And  where,  after  a  suit  is  commenced  by  an  administrator,  the 
estate  of  his  intestate  is  represented  insolvent,  the  defendant  may 
set  oflf  a  note  against  the  intestate,  which  falls  due  pending  the 
suit,  though  not  due  when  the  suit  commenced.    2  Metcalf,  255. 

In  Mississippi,  under  the  law  regulating  the  distribution  of  an 
insolvent  estate,  (see  ante  p.  311,)  it  was  decided  that  a  creditor 
of  an  insolvent  estate  could  not  ofF-set  his  oJaim  against  such  es- 
tate, against  a  claim  due  from  him  to  such  estate,  in  a  suit  by  the 
executor  or  administrator — 1  How.  95 — see  also  3  East.  149. — 
But  by  an  act  passed  in  1840,  it  is  enacted  that  where  there  have 
been  mutual  dealings  between  a  creditor  and  an  insolvent  dece- 
dent, before  his  death,  the  creditor  shall  be  allowed  the  full  a- 
mount  of  his  claim  founded  thereon,  as  against  any  claim  of  such 
insolvent  decedent  against  him. 

Therefore,  if  A.  and  B.  have  mutual  and  subsisting  demands 
against  each  other,  and  A.  dies  insolvent,  B.'s  claim  against  A. 
will  be  valid  ofF-set  to  A.'s  claim  against  B.,  notwithstanding  A.'s 
insolvency.     1  Sm.  &  M.  191. 

But  if  B.  has  purchased  property  at  an  administrator's  sale  of 
the  effects  of  A.,  he  cannot,  when  A.'s  estate  is  insolvent,  buy  up 
claims  against  the  insolvent  estate,  and  off-set  them  against  his 
debt  to  the  administrator.     Ihid. 

§  7.  A  judgment  in  favor  of  the  Judge  of  Probate  on  a  probate 
bond,  for  benefit  of  a  legatee,  against  an  executor  and  his  sureties, 
is  a  good  set-off  against  a  judgment  in  favor  of  the  executor,  in  his 
individual  capacity  against  the  legatee.    8  Pick.  342. 

And  in  an  action  by  an  heir,  for  his  distributive  share,  decreed 
by  the  Probate  court,  the  administrator  may  set  off  a  debt  due  from 
the  heir  to  his  ancestor,  the  intestate.     17  Mass.  81, 93. 

The  obligor  of  bonds  assigned  by  a  decedent  to  his  daughter's 
husband  as  an  advancement,  if  he  afterwards  becomes  his  admin- 
istrator, may  set  off  against  the  assignee  of  the  husband,  the  pro- 
portion overpaid  by  him  in  settling  the  debts  of  the  intestate,  if 


353  SET-OFF.  [CH.  LI. 

it  did  not  appear  that  he  gave  to  such  assignee  cause  to  believe  he 
had  no  such  set-oflf.    3  S.  &  R.  200. 

But  an  administrator  cannot  be  excused  from  accounting  to  a 
legatee  for  a  fund  assigned  to  him  by  the  other  legatees,  in  conse- 
quence of  their  having  purchased  at  his  sale  more  than  the  amount 
of  their  shares.     3  Hill's  Ch.  R.  62. 

In  a  recent  case  decided  in  Mississippi,  (to  be  reported  in  6 
Sm.  &  M.)  it  was  determined  that,  where  an  execution,  issued 
from  a  judgment  affirmed  by  the  High  Court  of  Errors  and  Ap- 
peals— a  distribution  of  the  decedent's  estate  having  been  made 
before  such  affirmance— and  the  execution  had  been  assigned  to 
one  of  the  distributees  who  had  received  his  proportion — such  ex- 
ecution could  not  be  quashed  either  on^e  ground — 

1st.  That  the  purchase  and  assignment  of  such  execution  ope- 
rates as  payment — or, 

2d.  That  as  the  beneficial  interest  was  in  one  of  the  distributees, 
he  could  not  have  it  levied  on  property  which  had  been  divided 
out. 

Per  curiam. — "  The  question  of  payment  in  matters  of  this 
kind,  is  one  of  intention  and  understanding  of  the  parties.  If 
these  be,  that  it  shall  be  an  assignment,  there  is  nothing  in  the 
law  to  prevent  that  effect.  It  passes  the  beneficial  interest  and 
enables  the  party  to  use  the  name  of  the  judgment  creditor  to  his 
own  use." 

"  There  may  be  questions  among  the  different  distributees  of 
the  estate  as  to  the  proportions  in  which  they  shall  contribute  to 
the  payment  of  this  claim.  But  this  point  cannot  now  arise. — 
The  whole  estate  was  bound,  and  on  motion  to  quash,  the  court 
could  not  adjust  the  equities."  Vanhouten  vs.  Reiley's  adm'r. 
Query — Could  not  the  execution  be  enjoined  till  the  proportions 
could  be  adjusted,  and  the  execution  be  credited  with  the  holder's 
rateable  proportion  ? 

On  a  decree  to  set  aside  a  sale  of  the  real  estate  of  decedent  as 
void,  the  court  will  order  an  account  of  the  rents  of  the  land  to 
be  charged  to  the  purchaser ;  and  the  value  of  all  the  permanent 
improvements  not  exceeding  the  rents,  to  be  credited  or  s&t  off  a- 
gainst  the  same,    3  Sm.  &  M.  715. 


OH.  LII.J        COMPENSATION  OP  EX'rs.  AND  ADM'rS.  353 


,  CHAPTER  LI  I. 

COMPENSATION  OF  EXECUTORS  AND  ADMINISTRATORS. 

§  1.  There  is  no  universal  rule  for  fixing  the  compensation  of 
executors  and  administrators.  Five  per  cent  on  money  received 
and  paid  out,  is  generally  an  approved  allowance.  In  some  ex- 
traordinary cases,  additional  charges  for  expenses  per  diem,  atten* 
dance,  &c.  may  be  proper;  but  such  charges  should  be  moderate, 
and  rigidly  scrutinized,  and  allowed  only  when  extraordinary  ser- 
vices have  been  required,  of  which  satisfactory  proof  must  be 
rendered.  Running  up  accounts  for  attending  courts,  magistrates' 
trials,  &c.  should  not  be  encouraged — 5  Dana,  42;  2  Hayw.  104; 
9  S.&  R.  209;  1  Baldwin,  380 — Nor  will  expenses  incurred  about 
a  suit  to  coerce  a  settlement  with  him  be  allowed.    5  Dana,  43. 

An  allowance  of  five  per  cent,  is  especially  proper  where  he  is 
charged  with  the  interest;  and  an  omission  to  charge  for  his  ser- 
vices does  not  prove  that  he  waived  his  claim — 7  Dana,  16.  And 
where  an  allowance  of  fifty  dollars  was  made,  when  commissions 
at  five  per  cent,  would  have  made  $100,  and  no  reason  appear- 
ed for  a  smaller  allowance  than  five  per  cent.,  it  was  disapprov- 
ed—-4  Dana,  602.  But  the  court  may  allow  less  than  five  per 
cent.    2  Murphy,  332. 

In  Virginia  it  was  held,  a  commission  of  7i  per  cent,  on  the 
amount  of  sales  and  collections,  ought  not  to  be  allowed  an  ex- 
ecutor, except  on  peculiar  circumstances  --2  Munford,  242.  In 
Pennsylvania,  where  the  estate  was  large,  and  there  was  little 
trouble,  three  per  cent,  was  deemed  sufficient  9  S.  &  R.  204, 
223. 

In  Maryland,  an  executor  was  allowed  Jive  per  cent,  commis- 
sion on  the  amount  of  inventory  returned  by  him,  excluding  what 
may  have  been  lost,  or  have  perished — 4  Har.  &  John.  12;  5  Gill. 
&  John.  60.  The  statute  declaring  that  not  less  than  5  per  cent 
'Shail  be  allowed,  applies  only  to  cases  of  full  administration,  by 
45 


354  COMPENSATION  OF  EX'rS.  AND  ADM'rS.         [cH.  LII. 

the  first  executor  or  administrator.  In  case  of  partial  adminis- 
tration, the  court  may  allow  therefor,  so  much  as  it  actually  de- 
serves— one  per  cent,  or  even  less. — Ihid.  The  allowance  of 
commissions  to  an  administrator  ad  colligeTidum,  can  have  no  ef- 
fect on  the  compensation  of  the  executor  or  administrator  of  the 
same  estate.  They  are  distinct  and  independent  allowances  for 
different  services.     3  Gill.  &  John.  20 — See  also  1  Ash.  323, 

An  executor  is  entitled  to  a  per  centage,  for  converting  into 
money  neat  stock,  &c.,  received  by  him  on  notes  so  payable;  and 
where  he  kept  no  exact  account  of  the  cost  and  loss  of  such  col- 
lection and  conversion,  he  is  entitled  to  a  reasonable  per  centage. 
And  delay  in  the  settlement  of  the  estate,  owing  to  laches  of  the 
executor,  will  not  deprive  him  of  compensation  for  actual  servi- 
ces rendered.    2  Verm.  294. 

The  rate  of  compensation  may  be  varied  according  to  circum- 
stances ;  and  an  executor  or  administrator  may  reasonably  be  al- 
lowed a  commission  of  10  per  cent,  on  money  received  by  him, 
where  the  debts  were  small  and  numerous,  and  the  debtors  dis- 
persed.— 3  Munf.  198;  9  S.  &  R.  209.  And  an  executor  charg- 
ed by  a  will  to  manage  lands  involved  in  controversy,  who  per- 
forms the  duty  with  skill  and  diligence,  is  not  limited  in  his  com- 
pensation to  the  ordinary  rules — 5  Munroe,  65 — Not  allowed 
commissions  on  a  debt  due  to  them  as  executors  of  another  per- 
son.   2  Murphy,  331. 

The  allowance  to  the  administrator  by  the  court  of  Probates,  as 
compensation  for  administering  the  same,  cannot  be  made  until 
a  final  settlement  of  the  estate.  7  How.  271;  9  S.  &  R.  223.— 
The  office  is  not  intended  as  one  of  profit,  and  only  a  bare  com- 
pensation can  be  allowed.    2  Hawks,  30;  1  Dev.  Eq.  269. 

An  executor  cannot  retain  his  commissions  against  the  credit- 
ors or  legatees,  till  they  are  allowed  by  the  court  of  Probates,  in 
a  suit  for  a  settlement  of  his  accounts.  They  cannot  be  allowed 
by  a  jury  on  a  plea  of  plene  administravit — 3  Dev,  353.  Interest 
on  compensation  not  allowed.     1  S.  &  R.  241;  6  Watts,  236. 

In  Mississippi,  the  statute  authorises  the  court  to  allow  com- 
missions on  property  lost  or  perished,  without  any  default  of  the 
administrator,  and  also  on  the  increase  of  the  property ;  and  in  all 


CH.  LII.]        COMPENSATION  OF  EX'rS.  AND  ADM'rS.  355 

cases  the  court  shall  allow  such  compensation  as  it  may  consider 
reasonable  and  just,  not  less  than  five  nor  more  than  Un  per  cent. 
How.  &  H.  414.  By  act  of  1844,  the  allowance  is  limited  iofivt 
per  cent. — See  ch.  12,  sec.  1,  acts  of  1844 — But  see  act  of  1846.. 

§  2.  Whether  an  executor  or  administrator  will  be  allowed 
commissions  on  the  proceeds  of  land  directed  to  be  sold,  by  the 
testator,  or  by  the  court,  see  1  Devereaux,  428;  1  Dev.  Eq.  195, 
329. 

In  Mississippi,  "the  law  does  not  impose  onerous  duties  on 
men  without  allowing  compensation."  And  therefore,  "the  act 
of  the  legislature  which  allows  the  administrator,  as  compensa- 
tion for  administering  the  estate,  or  certain  per  ctntagt  on  the 
"appraised  value,"  was  intended  to  embrace  the  whole  estate  ad- 
ministered, and  is  not  confined  to  that  portion  of  the  estate  which 
is  actually  appraised-— 7  How.  271.  It  also  embraces  real  estate 
sold  by  an  administrator,  under  an  order  of  court. — IMd.  612 — 
See6Gill.&  John.  171. 

Payments  made  to  the  distributees,  on  account  of  their  portions, 
whether  before  the  administration  is  settled,  or  at  the  close  of  it, 
are  not  considered  as  expenditures,  and  no  commissions  can  be 
allowed  on  them — 2  Hawks,  30;  2  Dev.  Eq.  1— -nor  on  payment 
of  debt  due  to  the  executors  themselves. 

But  executors  charged  with  the  management  of  legacies  to  in- 
fants, are  entitled  to  commissions.    2  Dev.  Eq.  488. 

The  executor  may  be  allowed  compensation  for  services  ren- 
dered to  the  estate  of  the  deceased,  in  finishing  the  growing 
crops,  if  his  services  are  of  advantage  to  the  estate.  6  Gill.  & 
John.  316. 

§  3.  Where  there  were  two  executors,  and  one  took  on  himself 
more  than  half  the  trouble  and  risk,  it  was  held  he  was  entitled 
to  more  than  a  moiety  of  the  commissions — 1  Dev.  Eq.  269. — 
They  take  commissions  as  executors  to  be  divided  according  to 
their  several  degrees  of  labor,  and  on  the  death  of  one,  who  had 
possession  of  the  fund,  the  survivor  is  not  entitled  to  another 
commission.  2  Dev.  Eq.  488~See  also  1  Dev.  &  Batt.  Eq.  564; 
9  S.  &  R.  223.  Executors  may  agree  as  to  their  respective  pro 
portions.     5Wh.228. 


356  LIMITATION.  [CHi  LIII. 

One  administrator  cannot  retain  the  whole  commission,  on  the 
ground  that  he  had  solely  transacted  the  business  of  the  adminis- 
tration.   4  Har.  &  J.  275. 

§  4.  Commissions  shall  not  be  allowed  to  a  dishonest  executor 
or  administrator.    2  Dev.  Eq.  1. 

Therefore,  where  an  administrator  pendente  lite,  set  up  an  un- 
founded claim  in  his  own  name  against  the  estate,  and  attempt- 
ed thereby  to  appropriate  nearly  the  whole  estate  to  his  own  use, 
the  court  refused  to  allow  him  any  compensation  fjr  his  services. 
4  Watts,  77. 

It  is  not  a  universal  rule  that  an  administrator  who  keeps  no 
accounts,  shall  be  allowed  no  commissions.  It  is  however -a  gen- 
eral rule,  and  will  only  admit  of  an  exception  under  very  peculiar 
circumstances.    2  Dev.  Eq.  137. 


CHAPTER  LIII. 


LIMITATION. 


§  i.  A  promise  by  an  executor  or  administrator,  will  take  a 
debt  of  the  testator  or  intestate,  out  of  the  general  statute  of  lim- 
itations. But  in  suing  on  such  promise,  the  declaration  of  the 
plaintiff  must  specially  aver  it.  See  1  Henn.  &  M.  563;  2  ib.  406; 
9  Leigh,  45,  381;  2  ib.  532;  5  Rand.  437. 

An  executor  or  administrator  is  not  bound  and  cannot  be  com- 
pelled to  plead  the  general  statute  of  limitations,  1  Atk.  526;  15 
Ves.  499;  2  Dess.  577— (But  see  9  Dow.  &  Ryl.  40,  contra,  where 
action  was  brought  twenty  years  after  the  testator's  death.) — See 
also  11  Leigh.  1,  where  Tucker,  Prest.  said — The  cases  show  that 
it  is  by  no  means  a  settled  rule  elsewhere,  that  an  executor  may 
of  his  own  will,  and  against  the  interest  and  express  directions  of 


CH.  LIIl.]  LIMITATION.  357 

the  parties  interested,  saddle  the  estate  with  a  debt,  which  he 
might  have  successfully  resisted."  Ibid.  39 — See  also  5  J.  J. 
Marsh.  255,  &  1st  Wharton,  66,  reviewing  5  Binney,  573;  14 
Serg.  &  R.  195;  15  ib.  231;  12  Wheat.  565;  &  7  Connt.  R.  178; 
and  see  1  M'Cord's  Ch.  R.  i75. 

§  2.  But  the  mere  acknowledgment  of  the  existence  of  a  debt 
is  not  sufl&cient.  There  must  be  an  express  promise  to  pay  it ; — 
and  if  there  be  more  than  one  executor,  all  must  join  in  the  prom- 
ise. 21  Eng.  C.  L.  R.  478;  9  D.  &  R.  40;  3  Call,  248;  3  Hen.  & 
Munf.  89;  12  Wheat.  565,  citing  8  Cranch.  72,  and  11  Wheat. 
209;  5  J.  J.  Marsh.  255. 

In  the  case  of  an  acknowledgment  by  an  executor  or  adminis- 
trator, there  is  loctis  peniterUice,  (room  for  recantation,)  and  the 
personal  representative  should  not  be  compelled  to  pay  a  demand 
barred  by  time,  unless  for  a  legal  consideration  he  had  expressly 
undertaken  to  pay  it.  12  Wheat.  565 — and  see  3  Shep.  (Maine) 
R.  360,  accordant.  A  promise  to  "settle  the  note,"  is  equivalent 
to  a  promise  to  pay.    8  Wend.  600. 

§  3.  It  has  been  held  that  an  executor  cannot  retain  for  a  debt 
due  to  himself  by  his  testator,  against  which  the  statute  of  limita- 
tions had  run  in  the  life-time  of  the  testator.  3  Wend.  502;  2 
Pick.  567;  5  ib.  140;  4  Monroe,  37. 

By  act  of  Mississippi,  "  in  no  case  will  an  executor  or  admin- 
istrator be  allowed  to  retain  for  his  own  claim  against  the  deceased, 
unless  the  same  be  passed  by  the  Probate  court ;  and  every  such 
claim  shall  stand  on  an  equal  footing  with  other  claims  of  the 
same  nature.    How.  &  H.  411. 

§  4.  In  an  action  against  an  administrator  de  bonis  non,  the 
plaintiff  may  join  promises,  made  by  the  testator,  with  one  made 
by  his  executor  before  revocation  of  his  letters,  and  one  made  by 
the  administrator  de  bonis  non.  2  Leigh,  532;  6  John.  R.  112; 
15  ib.  3;  4  Cowen.  493;  6  John  Ch.  R.  373;  2  Dess.  Eq.  R.  577; 
2  Rep.  Const.  Ct.  HI;  1  Har.  &  John.  191;  4  ib.  527. 

§  5.  The  power  of  the  executor  to  defeat  the  operation  of  the 
statute,  ceases  after  a  decree  for  an  account,  in  a  suit  for  the  ad- 
ministration of  the  assets,  which  put  it  out  of  his  power  to  affect 
the  relative  rights  of  creditors— 1  Russ.  &  Myl.  347;  2  ib.  75— 


358  LIMITATION.  [CH.  UI. 

And  after  the  decree,  any  executor  may  take  advantage  of  the  stat- 
ute, before  the  master,  though  the  executor  refuses. 

But  before  the  decree,  the  court  will  not  interfere  in  favor  of 
the  residuary  legatee,  to  compel  the  executor  to  plead  the  statute. 
Prec.  Ch.  99;  1  Eq.  Cas.  abr.  305. 

§  6.  An  acknowledgment  of,  or  promise  to  pay,  by  an  executor 
or  administrator,  a  debt  due  from  the  deceased,  will  not  avoid  the 
operation  of  the  special  statute  of  limitation,  by  which  the  liabil- 
ity 6f  executors  and  administrators  to  suits,  is  limited  to  four  years 
from  the  time  of  accepting  the  trust ;  because  that  statute  was 
made  for  the  benefit  of  the  estates  of  deceased  persons,  and  those 
interested  in  them,  and  not  for  the  personal  convenience  of  the 
executors  or  adminstrators. — 13  Mass,  201;  16  ib.  172;  15  ib.  6, 
58;  Kirby,  423;  5  Pick.  140.  If  a  claim  originates  after,  and 
cannot  be  ascertained  within  the  time  limited  by  the  court  of 
Probates  for  the  exhibition  of  claims,  it  is  not  barred  by  the  non- 
exhibition  of  it,  within  such  time.     6  Conn.  258.  I 

Where  an  executor  or  administrator  is  sued  upon  a  claim  against 
the  testator  or  intestate,  and  a  special  plea  in  bar  of  the  action  is 
filed — setting  up  the  action  of  limitations  of  eighteen  months,  the 
plea  will  be  defective,  unless  it  sets  forth  the  date  of  letters  testa- 
mentary or  of  administration,  that  there  was  publication  within 
two  months  after  such  date,  and  that  such  publication  was  contin- 
ued for  six  weeks  successively.     1  How.  115. 

§  7.  By  act  of  Mississippi,  1846,  it  is  provided,  "that  so  much 
of  the  law  to  which  this  is  an  amendment,  (see  avity  sec.  1,  p.  309) 
as  allows  to  creditors  of  an  estate  resident  within  this  State,  18 
months — and  to  non-resident  creditors  three  years,  within  which 
to  present  their  claims  against  said  estate,  be  and  the  same  is 
hereby  repealed :  and,  hereafter,  all  claims  against  the  estate  of 
a  deceased  person,  shall  be  presented  to  the  executor  or  adminis- 
trator thereof,  within  two  years  after  advertisement  made  of  the 
grant  of  letters  testamentary  or  of  administration,  or  they  shall  be 
barred.  And  to  authorise  the  collection  of  any  claim  and  the 
payment  thereof,  the  same  shall  first  be  probated  by  the  court  in 
which  the  estate  is  administered — shall  be  recorded  therein,  and 
shall  be  certified  by  the  judge  thereof,  under  his  hand,  as  "exam- 
ined and  allowed."     Ch.  12,  sec.  10,  act  of  1846,  p.  149.    For 


CH.  LIII.]  LIMITATION.  369 

what  constitutes  a  sufficient  presentation,  see  ante  sec.  2  and  3, 
p.  310. 

By  the  same  act,  (ch.  12,  sec.  14,  act  of  1846,  p.  151)  it  is  en- 
acted that,  "in  any  proceedings  of  the  Probate  courts  of  this  State, 
in  which  any  executor  or  administrator  may  contest  any  claim 
exhibited  against  the  estate  of  any  decedent,  the  Probate  court 
may,  at  its  discretion,  refer  the  same  to  auditors,  who  may  pro- 
ceed thereon,  subject  to  the  rules,  and  exercise  all  the  powers 
which  are  incident  to  and  belong  to  the  office  of  a  Master  in  Chan- 
cery, under  the  laws  and  usages  in  force  in  this  State."  See  ante, 
note  to  sec.  10,  p.  317,  and  sec.  1,  p.  313. 

§  8.  A  claim  growing  out  of  a  warranty  broken  before  the 
death  of  the  testator,  is  subject  to  the  operation  of  the  statutes  re- 
quiring claims  to  be  presented  within  eighteen  months  after  no- 
tice.   4  How.  246. 

The  statute  of  limitations  does  not  bar  the  remainder-man  In 
slaves,  until  six  years  after  the  termination  of  the  particular  es- 
tate.   lUd.  204. 

Where  G.  became  administrator  in  right  of  his  wife,  but  failea 
to  make  distribution,  or  settle  the  estate  according  to  law,  and 
pleaded  the  statute  of  limitation  to  the  bill  of  the  distributees — 
Held,  the  facts  constituted  a  subsisting  trust,  and  the  suit  was 
not  barred.     1  How.  365. 


360  INTEREST.  [CH.  LIV. 


CHAPTER   LIV. 

•f 

INTEREST. 

i 

§  1.  An  administrator  should  be  charged  with  interest  on  mon- 
ey received  for  the  estate  during  any  delay  in  its  settlement,  or 
when  he  can  be  fairly  presumed  to  have  used  the  money,  or  to 
have  had  a  safe  opportunity  to  have  kept  it  on  interest.  4  Vermt. 
256;  5  N.  Hamp.  492;  11  S.  &  R.  16;  1  Dev.  Eq.  364,  369.— 
And  it  seems  where  he  used  money  of  the  estate  for  his  own  pro- 
fit, he  will  be  chargeable  with  compound  interest,  so  as  to  make 
annual  rests,  during  the  whole  period  of  fourteen  years — 2 
Vermt.  294 — so,  if  he  has  used  any  part — 1  Dev.  Eq.  369 — or  if 
he  has  kept  no  accounts — IMd.    4  Humph.  215.  ,,j  .^.j^ 

But  where  a  fund  was  to  be  invested,  and  the  surplus  of  &e 
interest  not  used  in  the  education  of  a  minor,  was  to  be  invested, 
it  was  held,  that  the  executors  were  not  chargeable  with  com- 
pound interest,  for  neglecting  such  directions. — 2  Rawle,  305. — 
Yet  it  seems,  that  where  a  will  directs  the  executor,  to  place  out 
at  interest,  the  interest  which  he  received,  for  the  purpose  of  ac- 
cumulation, and  the  executor  renders  no  account  of  the  disposi- 
tion of  the  funds,  or  what  he  actually  received,  he  ought  to  be 
charged  as  nearly  as  the  same  can  be  ascertained,  with  all  he 
might  have  made,  or  have  received,  in  the  exercise  of  due  dili- 
gence and  exertion.  He  ought  to  be  charged  with  the  annual 
interest  on  the  principal  sum,  and  allowing  six  months  for  receipt 
and  investment,  after  the  manner  of  the  civil  law,  he  ought  to  be 
charged  with  interest  on  the  annual  amounts  of  interest  from  the 
end  of  six  months  after  they  respectively  fall  due,  as  long  as  the 
capital  has  remained  in  his  hands.    6  Halst.  145. 

Where  the  testator  leaves  the  same  person  executor  of  his  will, 
and  guardian  of  his  children,  he  is  chargeable  with  simple  inter- 
est only,  for  the  time  he  was  acting  as  executor ;  but  from  the  time 
the  administration  of  the  estate  was  or  might  have  been  conclu- 
ded, he  is  to  be  charged  with  compound  interest — unles  he  can 


OH.  LIV.]  INTEREST.  361 

show  special  equitable  circumstances  to  discharge  him  of  such 
accountability. — 1  Dev.  &  Batt.  Eq.  564.     On  this  subject,   see 

1  John.  Ch.  R.  512,  535.  624,  and  2  Wend.  77. 

§  2.  If  executors  convert  property  into  cash,  during  the  first 
year  after  the  testator's  decease,  they  are  chargeable  with  interest. 
6  Watts,  250. 

An  executor  or  administrator  in  South-Carolina,  is  liable  for 
interest  on  the  amount  of  the  sale  bill,  only  from  the  end  of  the 
current  year  in  which  it  became  due. 

In  general,  the  executor  is  liable  for  the  current  rate  of  interest 
that  may  be  obtained  on  the  description  of  property  in  his  hands. 

2  Rawle,  305. 

Interest  not  chargeable,  where  the  administrator  has  retained 
money  till  a  suit  respecting  the  right  thereto  shall  be  determined. 
1  Wash.  C.  C.  477. 

In  general,  an  executor  or  administrator,  having  faithfully  dis- 
charged his  trust,  having  exercised  prudent  care,  just  activity, 
reasonable  skill,  and  proper  diligence,  should  be  charged  only 
with  the  interest  he  has  made.     6  Halst.  145. 

§  3.  Executors  and  administrators  may  be  examined  on  oath, 
upon  interrogatories  before  the  Judge  of  Probates,  in  order  to  as- 
certain whether  he  is  liable  to  pay  interest  on  money  of  the  in- 
testate's estate— -6  Pick.  423 — Also  to  ascertain  what  use  they 
have  made  of  the  money.    5  N.  Hamp.  492. 

And  in  North-Carolina,  an  executor  will  be  charged  with  in- 
terest, unless  he  produce  an  account  and  swear  that  he  has  not 
used  the  fund  nor  loaned  it  to  others,  but  has  kept  it  on  hand  for 
the  purposes  of  his  trust,  and  is  to  be  charged  with  interest  from  the 
date  of  his  receipt  of  the  trust  money.     1  Dev.  Eq.  369. 

§  4.  An  administrator  was  allowed  to  charge  interest  in  his  ac- 
count upon  a  private  debt  due  him  from  the  intestate,  calculated 
for  the  period  of  18  months  after  taking  administration,  it  being 
considered  that  the  estate  might  have  been  settled  within  that 
period.    2  Pick.  567. 

Circumstances  may  exist  which  will  not  only  justify  but  com- 
mend an  advance  of  money  by  an  administrator,  and  entitle  him 
to  interest;  but  a  charge  of  interest  will  be  viewed  with  caution, 
46 


362  COSTS — WHEN  ADM'r.  ENTITLED  TO.  [CH.  LV. 

and  the  circumstances  offered  to  sustain  it,  will  be  examined  with 
extreme  care.  6  Halsted,  44 — See  also  Williams  on  Executors, 
1141. 

When  allowed,  interest  must  commence  from  the  time  when  a 
balance  is  struck  on  the  general  report — for,  till  then,  it  cannot  be 
ascertained  that  the  executor  or  administrator  had  not  money  in 
his  hands.     Wms.  on  Ex'rs.  1141. 

§  5.  Where  an  administrator,  several  months  after  having  set- 
tled his  accounts,  presented  a  petition  for  a  commission,  it  was 
held  that  the  account  was  thereby  opened  so  that  certain  omis- 
sions might  be  corrected.  And  a  settlement  of  an  administrator's 
account,  in  which  he  does  not  charge  himself  with  interest  on 
money  received,  the  question  of  interest  not  being  examined — 
does  not  preclude  a  subsequent  enquiry. 


CHAPTER  LV. 

COSTS— -WHEN  ADMINISTRATOR  ENTITLED  TO. 

§  1.  As  a  general  rule,  an  executor  or  administrator,  who  sues 
in  right  of  his  testator,  and  fails,  is  not  liable  for  costs — 2  Bay.  166; 
lBailey,79;  2ib.6;  2Litt.387;  2 J.J. Marsh. 499;  6Cowen,612; 
3  Dana,  157 — especially  if  he  sues  bona  fide,  and  not  with  any 
wanton  or  vexatious  object. — Ihid.  Nor,  is  he  liable  for  not  go- 
ing to  trial,  if  he  show  due  diligence  to  be  prepared  for  trial,  and 
that  he  is  prevented  without  any  fault  or  laches  on  his  part. — 4 
Cowen,  551;  2  Bay.  399.  They  are  not  liable  for  costs  unless 
guilty  of  a  violation  of  duty— -7  Wend.  522.  If  he  bring  a  wrong 
action  by  mistake,  he  is  not  liable  to  costs — 3  John.  249.  Ad- 
ministrators made  parties  defendant  by  sci.  fa.  are  not  liable  for 


CH.  LV.]  COSTS WHEN  ADM'r.  ENTITLED  TO.  363 

costs — 5  Ham.  45 — So,  where  he  comes  in  to  prosecute — 2  Pick. 
68;  11  ib.  389 — So,  where  they  suffered  non-suit  in  an  action  on 
a  promise  to  the  decedent,  in  his  life-time — 2  Bailey,  53;  ib.  — 
So,  if  plea  of  'pltne  administravit  is  admitted  by  the  plaintiif,  and 
judgment  quando  acciderint — 1  Wendel,  68 — So,  where  heir 
pleads  general  issue  and  riens  per  descent,  and  the  plaintiif  ad- 
mits the  latter  plea — 1  Wend.  69 — So,  where  set-off  is  pleaded 
and  allowed,  which  a  claimant  would  not  allow — the  resistance 
would  not  be  deemed  unreasonable.     7  ib.  522. 

A  judgment  quando  is  a  judgment  in  favor  of  the  defendant, 
who  is  therefore  entitled  to  his  costs.     1  Dev.  228. 

Where  an  administrator  establishes  his  plea  of  "plene  adminis- 
travit" he  is  entitled  to  judgment  and  execution  for  costs  imme- 
diately against  the  plaintiff.     1  Murph.  502. 

In  Mississippi,  it  is  enacted,  that  executors,  administrators  and 
collectors,  shall  have  full  power  and  authority  to  commence  and 
prosecute  any  personal  action  whatever,  at  law  or  in  equity,  (as 
the  case  may  require,)  which  the  testator  or  intestate  might  have 
commenced  and  prosecuted — except  actions  for  slander,  and  for 
injuries  and  torts  done  to  the  person ; — and  they  shall  also  be  lia- 
ble to  be  sued  in  any  court  of  law  or  equity,  (as  the  case  may  re- 
quire,) in  any  action  (except  as  aforesaid,)  which  might  have  been 
maintained  against  the  deceased ;  and  they  shall  be  entitled  to, 
or  be  answerable  for  costs  in  the  same  manner,  as  the  deceased 
would  have  been ;  and  they  shall  be  allowed  for  the  same  in  their 
accounts: — Provided,  the  court  awarding  costs  against  them,  shall 
certify  there  were  probable  grounds  for  instituting,  prosecuting  or 
defending,  the  action  on  which  a  judgment  or  decree  shall  have 
been  rendered  against  him.  And  in  no  action,  against  an  execu- 
tor, administrator  or  collector,  shall  he  be  compelled  to  put  in 
special  bail.    How.  &  H.  412— Act  1821 . 

Probate  courts  are  excepted  from  the  operation  of  the  act  of 
1846,  chap.  46,  p.  219 — regulating  collection  of  costs,  &c. 

•  COSTS WHEN  ADm'r.  LIABLE  FOR. 

§  2.  Executors  are  personally  liable  for  costs  where  they  plead 
a  plea,  which  is  found  against  them,  or  one  which  is  not  true  in 
point  of  fact— -2  John,  377 — or  where  they  commence  an  action 
and  fail  to  support  it— -16  Mass.  530 — See  also  2  Root,  398. 


364  COSTS — WHEN  adm'r.  liable  for.       [ch.  lv. 

In  trover,  by  executors,  for  conversion  after  the  testator's  death, 
if  they  are  non-suited,  they  are  liable  for  costs. — 5  Cowen,  267;  2 
Bay.  166;  2  Bailey,  319. 

If  an  executor  sue  as  such,  when  he  might  have  sued  in  his 
own  name,  and  fails,  he  shall  pay  costs — otherwise,  if  he  neces- 
sarily sue  as  executor.  Thus,  where  an  executor  declared  on  a 
promissory  note,  and  for  money  lent,  &c.  in  the  life-time  of  his 
testator,  averring  a  promise  to  himself  as  executor,  after  the  testa- 
tor's death,  and  was  non-suited  at  the  trial — Held,  that  he  should 
not  pay  the  cost.  4  Cowen,  550;  ib.  87;  2  Bay.  166;  11  S.  &  R. 
247. 

Administrators  contesting  for  their  own  interest  the  claims  of 
heirs,  are  bound,  in  case  of  failure,  to  pay  the  expenses  of  the 
suit  out  of  their  own  pockets — 5  Binn.  138.  And  an  executor, 
contesting  for  the  validity  of  a  will,  is  personally  liable  for  fees 
paid  to  counsel.     3  W.  &  S.  441;  1  Murph.  436. 

An  executor  is  liable  for  costs,  on  a  motion  for  a  judgment,  as 
in  case  of  a  non-suit,  unless  diligence  is  shown  to  have  been  used, 
in  the  prosecution  of  the  suit.     1  Wend.  34. 

An  administrator  is  also  liable  for  costs,  if  he  suffer  judgment 
by  default — 1  Hill  (S.  Car.)  239.  On  abatement  of  suit  by  death 
of  plaintiff,  no  execution  for  costs  should  issue  without  a  sci.fa. 
to  his  representatives.    2  Hay.  341. 

Administrators  are  liable  for  fees  due  to  the  Prothonotary  and 
other  officers.     11  S.&R.247. 

An  administrator  will  not  be  credited  with  counsel's  fees  paid 
for  making  an  unjust  and  vexatious  defence,  to  the  claim  of  the 
next  of  kin.    6Whart.401. 

And  where  he  has  resisted  the  payment  of  a  just  debt  without 
reason,  and  when  he  had  assets  in  his  hands,  he  cannot  charge 
the  costs  of  the  recovery  of  such  debt  to  the  estate.    6  Watts,  236. 

An  administrator  will  not  be  allowed  for  fees  paid  for  profes- 
sional services,  in  a  suit  against  him  for  a  specific  legacy,  where 
the  contest  was  between  different  claimants  of  the  legacy,  and  the 
residuary  legatees  had  no  interest  in  the  result.     Ib.  250. 

Where  after  a  will  had  been  proved,  and  letters  testamentary 
granted  to  the  executor,  who  had  married  a  daughter  of  the  testa- 
tor, and  one  of  the  sons  alleged  that  a  conveyance  of  the  estate 


CH.  LVI.]     WHERE  NO  EX'r.  OR  ADM'r.  WILL  QUALIFY.        365 

had  been  made  to  him  by  the  testator  in  his  life-time,  whereupon 
the  Register's  court  directed  an  issue  of  revocavit  vel  non,  which 
was  decided  against  the  will — upon  which  the  executor  took  a 
writ  of  error  from  the  Supreme  court — but  the  parties  interested 
under  the  will,  having  executed  releases  to  the  son,  setting  up 
the  conveyance,  the  executor  discontinued  the  writ  of  error — 
Held :  he  was  entitled  to  charge  the  estate  with  the  costs  of  liti- 
gation.   9  Watts,  284. 

Where  an  administrator  omits  to  plead  no  assets,  and  a  verdict 
is  rendered  against  him  on  his  other  plea,  the  judgment  must  be 
for  costs  de  bonis  propriis — 1  Hay.  218, 298.  Administrators  de- 
fendant are  generally  liable  for  costs  de  bonis  propriis,  unless 
some  plea  to  the  whole  action  be  found  in  their  favor.  4  Dev. 
581. 


CHAPTER  LVI. 

ADMINISTRATIO N— - WH KK.E  NO  EXECUTOR  OR  ADMINISTRATOR  WILL 

QUALIFY. 

§  1 .  "  Whenever  it  shall  appear  to  any  Judge  of  Probate,  that 
any  individual  or  person  deceased,  with  or  without  a  last  will,  in 
the  county  to  which  he  is  Judge,  and  that  no  executor  or  admin- 
istrator having  been  appointed  by  said  deceased  by  any  last  will 
or  testament,  or  if  appointed  by  said  deceased,  and  fails  or  re- 
fuses to  qualify  as  said  executor,  and  take  upon  himself  the  trust, 
and  proceed  to  execute  the  same,  and  no  person  will  take  letters 
of  administration  with  or  without  a  will,  on  the  estate  of  the  de- 
ceased— it  shall  be  the  duty  of  the  court  of  Probates  of  the  county 
in  which  said  person  deceased,  to  order  the  Sheriff  of  the  county 
to  take  possession  of  said  estate ;  and  it  shall  be  the  duty  of  said 
Sheriff  to  administer  said  estate  according  to  law — in  such  cases, 


366  ACTIONS  BY  AND  VS.  EX'rS.  AND  ADM's.       [cH.  LVII, 

under  the  control  and  direction  of  the  court  of  Probates — in  the 
same  manner  and  according  to  the  same  regulations,  as  are  in 
force  in  cases  of  administration,  with  or  without  the  will  annex- 
ed."   And  further — 

"  Upon  the  expiration  of  the  term  of  office  of  any  Sheriff,  to 
whom  administration  of  any  estate  shall  have  been  committed,  to 
make  with  the  Probate  court  a  full  settlement  of  his  account  of 
administration  of  said  estate,  and  to  hand  over  to  his  successor  in 
office,  any  portion  of  said  estate  which  may  remain  unadminister- 
ed  in  his  hands,  upon  the  order  of  the  court ; — and  such  sheriff 
and  his  securities  upon  his  official  bond,  shall  be  liable  to  any 
party  interested  in  the  estate — for  devastavit,  or  other  improper 
management  of  said  estate,  in  the  same  manner,  to  the  same  ex- 
tent as  administrators  with  the  will  annexed,  and  their  securities 
are  liable  thereon." 

And  further — "  This  act  shall  be  in  force  from  and  after  the 
first  Monday  of  November,  1847,  and  not  before."  Acts  of  1846, 
chap.  25,  p.  185. 


CHAPTER  LVII. 

ACTIONS  BY  AND  AGAINST  EXECUTORS  AND  ADMINISTRATORS. 

§  1.  By  act  of  1826,  executors  and  administrators  are  authori- 
sed to  commence  and  prosecute  any  suit  which  their  decedent 
could  have  done  (except  actions  for  slander  and  for  injuries  and 
torts  done  to  the  person) — See  ante  page  363 — And  they  shall  be 
likewise  liable  to  an  action. — lb.    How.  &  H.  412. 

§  2.  By  act  of  1821,  "All  actions  which  have  been  commenced 
and  prosecuted  for,  or  against  any  testator  or  intestate,  (except 
actions  for  slander  and  for  injuries  or  torts  done  to  the  person,) 


CH.  LVII.]       ACTIONS  BY  AND  VS.  EX'rS.  AND  ADM's.  367 

shall,  and  are  hereby  declared  to  survive  for  and  against  ex- 
ecutors and  administrators  with  the  same  effect  they  might  or 
could  have  been  had  or  maintained  for  or  against  the  testator  or 
intestate,  any  law,  usage  or  custom  to  the  contrary  in  any  wise 
notwithstanding."     How.  &  H.  414. 

§  3.  By  act  of  1830 — "  The  act  to  which  this  is  an  amendment, 
(act  of  1821,  How.  &  H.  417,)  shall  be  so  construed  as  to  author- 
ise any  suit  or  suits  to  be  brought  by  persons  interested  in  the  es- 
tate of  any  deceased  person,  as  creditors  or  otherwise,  on  any 
bond  given  by  administrators  or  executors,  against  such  executors 
or  administrators  and  their  sureties,  jointly  in  the  first  instance, 
and  in  no  case  shall  a  separate  suit  be  necessary  against  any  ex- 
ecutor or  administrator,  for  the  establishment  of  a  devastavit,  prior 
to  the  liability  of  such  securities."     How.  &  H.  419. 

§  4.  For  liability  of  persons  intermeddling  with  goods  of  dece- 
dent—see How.  &  H.  415,  and  ante,  note  to  p.  227. 

§  5.  Act  of  1821,  provides  that  where  securities  of  an  executor* 
or  administrator  take  charge  of  the  property,  they  shall  be  liable 
to  sue  and  be  sued,  in  the  same  manner  as  an  executor  or  admin- 
istrator.   How.  &  H.  399. 

§  6.  By  act  of  1822,  "  Actions  of  account  may  be  brought  a- 
gainst  the  executors  or  administrators  of  every  guardian,  bailiff, 
and  receiver,  and  also  by  one  joint  tenant  or  tenant  in  common, 
his  executor  or  administrator,  against  the  other  as  bailiff,  for  re- 
ceiving more  than  comes  to  his  just  share  or  proportion — and  a- 
gainst  the  executors  or  administrators  of  such  joint  tenant  in  com- 
mon.   Ibid.  547. 

§  7^  By  act  of  1822 — The  executors  or  administrators  of  any 
person  to  whom  rent  is  due,  and  not  paid  at  the  time  of  his  death, 
may  have  an  action  of  debt  against  the  tenant  or  his  executors 
or  administrators — and  also  distrain  therefor,  while  in  possession 
of  the  tenant,  or  of  any  person  claiming  through  him,  in  like  man- 
ner «Lnd  form  as  their  testator  or  intestate  might  have  done,  and 
may  make  recovery  in  the  matter  as  aforesaid.     Ibid.  563. 

By  act  of  1822,  the  same  remedy  is  given  where  the  demise 
or  lease  is  determined.     Ibid. 


368  ACTIONS  BY  AND  VS.  EX'rs.  AND  ADM's.       [cH.  LVII. 

§  8.  "No  action,  or  suit  at  law  or  in  equity,  shall  be  brought 
against  any  executor,  administrator,  or  other  person  or  person;s 
having  the  charge  or  management  of  the  estate  of  a  testator  or 
intestate,  upon  any  judgment  or  other  cause  of  action,  against  his 
testator  or  intestate;  nor  shall  any  scire, facias  be  issued  against 
an  executor,  administrator,  or  other  person  or  persons,  having  the 
charge  or  management  of  the  estate  of  an  intestate  or  testator,  to 
revive  any  judgment  or  other  cause  of  action,  after  the  expiration 
of  four  years,  from  the  qualification  of  such  executor,  administra- 
tor or  other  person,  having  charge  or  management  of  the  estate. 
And  all  such  judgments  or  other  causes  of  action,  after  the  expir- 
ation of  four  years,  as  aforesaid,  upon  which  no  proceedings  shall 
have  been  had,  shall  be  deemed  to  have  been  paid  and  discharg- 
ed, saving  to  all  persons  non  compos  mentis,  femes  coverts,  under 
twenty-one  years  of  age,  without  the  limits  of  the  United  States, 
or  personally  imprisoned,  who  may  be  entitled  to  the  benefit  of 
such  judgment,  or  other  cause  of  action,  two  years,  after  their  sev- 
eral disabilities  are  removed,  within  which  to  commence  their 
action."  Act  of  1822— How.  &  H.  412— Act  of  1844,  chap.  9, 
sec.  12. 

§  9.  By  act  of  1846 — "  Whenever  any  suits  shall  have  been  or 
may  be  hereafter  instituted  by  any  administrator  ad  colligendum, 
or  by  or  against  any  executor  or  administrator  having  plenary 
powers,  and  the  powers  of  such  administrator  ad  colligendum, 
executor  or  administrator  having  plenary  powers,  shall  cease,  or 
be  determined,  and  afterwards  letters  of  administration  or  testa- 
mentary shall  be  granted,  such  suits  shall  not  abate  at  law,  or  be 
dismissed  in  equity,  but  shall  continue  and  may  be  revived  by 
scire  facias  at  law  or  by  bill  of  revivor  in  equity." 

And  further — "When  any  judgment  or  decree  shall  have  been 
or  may  hereafter  be  rendered,  at  law,  or  in  equity,  in  favor  of  an 
administrator  ad  colligendum,  or  in  favor  of  or  against  an  execu- 
tor or  administrator  having  plenary  powers,  and  the  powers  of 
such  administrator  ad  colligendum,  executor  or  administrator, 
having  plenary  powers,  shall  cease  or  be  determined,  and  letters 
testamentary  or  of  administration,  shall  afterwards  be  granted, 
such  judgments  or  decrees  may  be  revived  by  scire  facias  at  law, 
or  bill  of  revivor  in  equity." 


CH.  LVII.]       ACTIONS  BY  AND  VS.  RX'rS.  AND  ADM's.  369 

And  further — "All  writs  of  replevin,  attachments,  injunctions, 
and  other  restraining  orders  or  process,  and  all  bonds  taken  by 
virtue  of  them,  shall  continue  in  force,  in  all  such  cases,  in  as  full 
and  ample  a  manner,  as  if  the  powers  of  such  administrator  ad 
coUigejidum,  executor  or  administrator  having  plenary  powers, 
had  not  ceased  or  been  determined ;  and  that  this  act  take  effect 
from  and  after  its  passage — Provided,  that  any  execution  issued 
upon  such  judgment,  shall  only  be  levied  upon  the  lands  and 
tenements  so  recovered;  and  that  a  sale  of  such  lands  and  tene- 
ments, by  said  execution,  shall  satisfy  said  execution  and  judg- 
ment, whether  the  amount  of  money  realised  from  said  sale  shall 
equal  the  amount  of  the  judgment  or  not."  Act  of  1846,  ch.  27, 
p.  187-9. 

§  10.  It  is  a  regular  proceeding  to  sue  out  a  scire  facias,  on  a 
judgment  against  an  executor  or  administrator,  and  obtain  an  a- 
ward  of  execution  de  bonis  propriis,  by  proving  a  devastavit — 1 
How.  271 .  But  it  will  be  error  unless  there  be  proof  of  devastavit, 
Ibid.—b  How.  69, 

The  allegations  of  a  scire  facias,  are  not  of  themselves  sufficient 
to  justify  a  judgment  final,  by  default.     Ibid. 

Scire  facias  against  an  administrator  to  revive  a  suit,  is  not  in 
the  character  of  an  action,  and  may  be  maintained  before  the  ex- 
piration of  the  nine  months  allowed  by  statute,  before  administra- 
tors are  suable  in  their  representative  capacity — 1  How.  273 — 
But  it  partakes  so  much  of  the  nature  of  an  original  action,  as  to 
justify  a  plea  in  defence  thereof.     Ibid,  271. 

On  scire  facias  to  revive,  judgment  should  be  rendered  against 
the  defendants  in  their  representative  character,  or  it  will  be  er- 
ror.    1  How.  273. 

Suits  against  administrators  shall  not  abate  in  consequence  of 
the  insolvency  of  the  estate  of  the  deceased,  but  shall  be  prosecu- 
ted to  final  judgment.    Ibid. 

The  sureties  of  an  administrator,  must  be  sued  at  law,  after  pro- 
ceedings to  fix  the  liability  of  the  administrator.    5  How.  638. 

See  ante,  pages  242,  243,  for  proceedings  on  administrator's 
bond. 

47 


370  ACTIONS  BY  AND  VS.  EX'rS.  AND  ADM's.       [cH.  LVII. 

> 

§  11.  In  Mississippi,  the  administrator  is  not  bound  to  plead 
any  thing  but  the  general  issue — He  may  elect  to  plead  specially. 
6  How.  279. 

When  the  plea  of  non  assumpsit  pleaded  generally  by  an  ex- 
ecutor or  administrator,  will  not  authorise  a  verdict  against  him 
in  his  own  right— Ibid.— 2  How.  616;  4  Sm.  &  M.  113. 

Where  in  a  suit  against  an  administrator,  on  his  bond,  to  recov- 
er a  debt  due  by  the  intestate,  he  pleaded  that  the  right  of  action 
did  not  accrue,  within  six  years  before  the  commencement  of  the 
suit — held,  the  plea  was  bad.  The  defendant  should  have  aver- 
red his  exemption  from  liability  to  pay  as  administrator,  at  the  time 
of  the  presentation  of  the  claim.    4  How.  242. 

The  executor  is  individually  responsible  where  he  promises  to 
pay  an  account  stated,  when  it  does  not  appear  that  it  was  for 
money  due  by  the  testator,  although  he  expressly  promised  "as 
executor."    3  How.  176. 

In  a  suit  on  an  executor's  bond,  for  the  use  of  an  assignee  of  a 
legacy,  it  is  no  bar  to  the  action,  that  the  plaintiff  is  administrator 
of  one  of  the  joint  obligors.     1  How.  297. 

§  12.  A  sheriff  having  execution  against  the  goods  and  chat- 
tels of  decedent,  &c.  must  distinguish  between  the  property  of  the 
decedent  and  the  individual  property  of  the  administrator. — 1 
How.  50.  The  administrator's  goods  are  no  more  liable  than 
those  of  a  stranger.     Ibid. 

A  judgment  against  executor  generally  de  bonis  propriis,  is 
erroneous.    4Sm.&M.  113. 

§  13.  An  action  is  not  maintainable  against  an  administrator, 
personally,  unless  he  is  fixed  with  assets.     3  Dev.  101 . 

A  judgment  quando,  does  not  fix  the  administrator  with  assets; 
and  as  to  a  scire  facias  on  it,  he  may  show  an  application  of  sub- 
sequent assets  to  debts  of  higher  dignity.    4  Dev.  44. 

Assets  being  a  trust  fund,  courts  of  Equity  may  exercise  juris- 
diction to  compel  discovery  of  assets,  and  their  application  to  pay- 
ment of  debts,  even  a  debt  without  judgment — 3  Dana,  392 — 
And  the  case  is  stronger  when  there  is  judgment,  and  nulla  bona 
is  returned  on  the  execution — and  still  clearer  if  no  inventory  of 


CH.  LVII.]       ACTIONS  BY  AND  VS.  EX'rS.  AND  ADM's.  371 

the  estate,  so  that  a  discovery  may  be  essential  to  aid  an  action  for 
a  devastavit.    5  Dana,  410. 

Where  a  plaintiif  fixes  an  administrator  with  assets,  he  shall 
have  judgment  for  that  amount,  and  for  the  residue,  quando  ac- 
ciderint.     1  Dev.  442. 

If  in  an  action  against  administrator,  he  plead  "no  assets," 
which  jury  find  true,  and  plaintiif  signs  judgment  and  then  sues 
out  sci.fa.  against  the  heirs  at  law,  to  subject  real  estate  of  debt- 
or to  payment  of  the  debt — and  pending  sci.  fa.  assets  come  to 
the  administrator's  hands,  the  plaintiff  cannot  have  a  sci.  fa.  a- 
gainst  the  administrator  to  subject  those  assets,  the  judgment  not 
having  been  entered  quando  acciderint.    2  Murph.  281. 

Plea  of  "  plene  administravit,"  must  be  received  at  all  times, 
provided  the  defendant  does  not  come  in  with  it,  at  a  very  late 
period  to  delay  the  trial.     1  Hayw.  484. 

A  judgment  in  one  State  dt  bonis  propriis,  is  proof  of  assets, 
and  in  debt  on  such  judgment  in  another  State,  the  judgment  is 
de  bonis  propriis.    2  Hayw.  490. 

Executors,  being  sued  as  such,  pleaded  non  assumpsit,  and 
plene  administravit — ^Jury  found  on  first  plea,  for  plaintiff;  but 
did  not  respond  on  the  second.  Upon  a  sci.  fa.  to  charge  execu- 
tors de  bonis  propriis,  executors  are  permitted  ex  necessitate,  to 
plead  plene  administravit,  but  the  plea  must  relate  to  the  teste  of 
the  first  process,  and  they  would  not  be  entitled  to  such  plea  now, 
had  they  not  pleaded  it  in  the  first  action.  2  Hayw.  166;  2  ib. 
271. 

In  suit  for  devastavit,  and  plea  of  plene  administravit — and 
verdict  for  plaintiff — the  jury  should  ascertain,  and  the  verdict 
must  show  the  amount  of  assets  wasted  or  unadministered ;  for 
beyond  that  the  statute  (in  Kentucky,)  exempts  administrators. — 
3  Dana,  137. 

§  14.  It  is  not  intended  to  embrace  within  this  work  a  full 
treatise  on  the  practice  of  other  than  the  Courts  of  Probate,  in 
suits  by  and  against  administrators.  The  foregoing  examples 
have  been  inserted,  because  they  fall  appropriately  in  with  the 
subjects  contained  in  this  and  some  preceding  chapters. 


I 
372  DOWER.  [CH.  LVIIl* 


CHAPTER  LVIU. 


DOWER WHAT.' 


§  1.  Dower  is  that  provision  which  the  law  makes  for  the  sup- 
port of  the  widow,  and  the  nurture,  maintenance  and  education 
of  her  children. — Bracton,  book  2,  ch.  39,  sec.  4 — cited  in  Roper 
on  Bar  &  Feme,  100.  This  right  has  existed  in  all  nations  of 
Teutonic  origin.    11  Ohio  Reps.  219. 

This  right  is  contingent  during  husband's  life,  (or  inchoate,) 
and  rendered  absolute  by  his  death. — 1  Cowen,  89.  It  is  an  ex- 
crescent interest,  growing  out  of  the  inheiitance  for  a  time,  after 
which  it  falls  again  into  the  inheritance.     1  Dallas,  419. 

It  is  inseparable  from  seizin  acquired  by  husband — 1  Cowen, 
89 — and  is  in  continuation  thereof— -4  Mass.  384,  388;  1  Pick, 
314,  317;  1  Pick.  189,  196.  Seizin,  actual  or  constructive,  must 
be  shown-™3  How.  205;  1  Sm.  &  M.  527;  7  Mass.  253. 

Three  incidents  are  requisite  to  dower — 1st.  Marriage — 2d. 
Seizin — 3d.  Death  of  the  husband.— 1  Inst.  32,  a,  b. 

§  2.  Dower  is  favored  in  law  in  a  high  degree,  and  is  held  sa- 
cred only  next  to  life  and  liberty. — Lilly's  abr.  666. 

It  is  founded  on  a  legal,  equitable,  and  moral  right. — Prec.  in 
Chan.  344.  Being  a  legal  right,  it  cannot  be  affected  by  any  act 
of  the  husband.    5  Hill,  206.* 

§  3.  Dower  is  not  alienable,  but  it  may  be  released. — 1  Cowen, 
89.  Until  assignment,  it  cannot  be  leased. — 13  Pick.  33.  Nor 
is  it  subject  to  execution,  till  assigned. — 14  Mass.  378.t 


*Dower  is  a  legal  right,  and  whether  claimed  by  suit  in  law  or  equity,  the  prin- 
ciple is  the  same.    15  Peters  31 . 

t  But  widow  cannot  enter  till  the  heir  assigns,  or  legal  proceedings  are  kad. — 
4  Mass.  384;  9  ib.  13;  16  ib.  1»1. 


CH.  LVIII.J  DOWER.  373 

§  4.  The  right  of  dower  is  inchoate  by  marriage,  and  consum- 
mate at  death  of  husband.  It  relates  back  to  the  date  of  the  mar- 
riage, and  cuts  out  all  intermediate  incumbrances,  to  which  the 
wife  has  not  consented,  in  the  mode  prescribed  by  law.  1  Cow- 
en's  repts.  89. 

The  right  of  dower  is  paramount  to  the  right  of  the  heirs — 2 
Root,  50. 

It  will  be  preferred  to  husband's  creditors — 4Yerger,218 — al- 
though land  has  been  sold  after  his  death  under  a.  fieri  facias. — 
Ibid. — and  see  3  Dever.  3;  2  Root,  50.* 

DOWER— -WHO  ENTITLED. 

§  5.  Only  the  actual  wife  of  a  man,  at  the  time  of  his  death, 
is  entitled  to  dower  of  his  estate.    Black.  Com.  130. 

If,  therefore,  a  wife  be  divorced  from  her  husband  before  his 
death,  she  will  not  be  entitled  to  dower — unless  it  be  only  a  men- 
sa  et  thoro — which  does  not  dissolve  the  marriage,  and  therefore 
does  not  destroy  dower,  which  is  one  of  the  incidents  thereof. — 
Ihid. 

But  divorce,  even  if  a  mensa  et  thoro  only,  will  bar  dower,  if 
it  be  on  account  of  adultery  of  wife. — Ibid.  See  also  Roper  on 
Bar.  &  Feme.  101. 

If  divorced  for  adultery  of  her  husband,  the  wife  may  be  en- 
dowed of  all  the  lands,  of  which  her  husband  was  seized  during 
coverture,  though  alienated  before  decree  of  divorce.  14  Mass. 
219. 

§  6.  The  wife  must  be  above  nine  years  of  age,  because  till 
then  "non  potest  promereri  dotem,  neque  virum  sustinere" — (i.  e.) 
she  can  neither  earn  dower,  nor  bear  a  man.  But  this  rule  ap- 
plies only  to  the  age  of  the  wife,  and  is  confined  to  the  time  of  her 
husband's  death.  For  although  the  wife  when  married  be  under 
that  age,  yet  if  she  shall  have  reached  the  age  of  nine  years,  at 
the  time  of  her  husband's  death,  she  will  be  entitled  to  dower. — 
Roper  on  Bar.  &  Feme.  101;  Coke  Litt.  33. 


*But  conveyance  by  husband  in  conformity  with  his  agreement  by  parol,  made 
before  marriage,  will  bar  widow's  dower,  in  the  land  conveyed — 1  B.  Monroe,  77, 
79;  I  Devereaux,  30;  3  ib.  3.  So,  conveyance  by  husband  before  marriage,  tho' 
unrecorded,  at  the  time  of  marriage.    23  Pick.  80. 


ST4  DOWER.  [CH.  LVIIK 

An  alien  is  not  entitled  to  dower. — Coke  Litt.  31,  6;  2  Johns. 
Cases,  29. 

In  Maryland,  an  alien  widow,  who  married  in  the  United  States, 
was  admitted  to  dower.     I  Har.  &  Gill.  280. 

In  Massachusetts,  (stat.  1835)  and  in  New- York,  by  stat.  1799, 
an  alien  widow  takes  dower. 

The  widow  of  a  person  placed  on  the  confiscation  list,  is  not 
barred  of  her  dower — I  Bay's,  repts.  73;  2  Bay.  20.  Whether 
native  bom  widow  of  an  alien  is  entitled  to  dower — query  ?  See 
Judge  Maye's  opinion. 

Judge  Mayes'  Opinion. 

Husband  is  an  alien,  wife  a  citizen — he  purchases  real  estate, 
and  dies  leaving  neither  lineal  nor  collateral  relations  capable  of 
inheriting.    Does  it  descend  to  his  wife  ? 

It  does  not. 

The  question  arises  under  the  following  provision : 

"  In  case  any  resident  of  this  state  shall  die,  leaving  no  lifteal 
or  collateral  relations,  capable  of  inheriting,  but  shall  leave  a  wid- 
ow, such  widow  shall  inherit  the  whole  estate."  Howard  &  Hut, 
367. 

Escheats  result  from  two  causes:  , , 

1st.  Because  the  tenant  cannot  hold. 

2d.  Because  the  tenant  who  could  hold  has  died,  but  has  left  nei- 
ther lineal  nor  collateral  relations  capable  of  inheriting. 

In  the  first  case  it  results  from  a  defect  in  the  tenant  himself.. 
In  the  second  from  a  defect  of  heirs.  The  foregoing  provision 
obviously  was  intended  to  supply  an  heir  by  giving  the  inherit- 
ance to  the  widow  where  the  estate  would  have  escheated  for 
defect  of  heirs,  if  none  but  lineal  or  collateral  kindred  could  in^ 
herit,  and  has  no  reference  to  the  case  in  which  the  tenant  could 
not  hold. 

To  pass  an  estate  by  inheritance,  two  things  are  necessary: 
1st.  That  the  tenant  be  able  to  transmit  by  inheritance. 
2d.  That  he  who  claims,  be  capable  of  receiving  by  inheritance. 

The  statute  enables  the  widow  to  receive  an  inheritance  under 
certain  circumstances,  that  is,  where  the  lineals  and  collaterals 
are  incapable  of  receiving — putting  it  on  the  incapacity  of  lineals 
and  collaterals — but  confers  no  power  on  an  alien  to  transmit. 


CH.  LVIII.]  DOWKR.  375 

Where  an  alien  purchases,  the  escheat  results  from  the  pur- 
chase. Where  a  citizen  dies  without  lineals  or  collaterals  capa- 
ble of  inheriting,  the  escheat  results  from  the  death. 

The  statute  relates  to  escheats  resulting  from  the  death,  and  not 
to  those  resulting  from  the  purchase.  Its  language  is,  if  any  per- 
son die  leaving,  &c. 

Can  the  widow  have  dower,  or  does  it  descend  free  from  dower  ? 
She  cannot  have  dower. 

At  the  common  law,  a  widow  could  not  be  endowed  of  an  es- 
tate, which  could  not  by  legal  possibility  have  descended  to  a 
child  born  of  the  marriage.  To  prove  that  she  can  have  dower, 
we  must  prove  that  if  there  had  been  a  child  of  the  marriage,  such 
child  could  have  inherited.  This  cannot  be  done.  A  citizen 
child  cannot  inherit  from  an  alien  father — not  for  want  of  capa- 
city in  the  child  to  take,  but  for  want  of  ability  in  the  father  to 
transmit. 

The  law  only  gives  to  the  wife  dower  in  an  estate  which  the 
law  renders  the  husband  capable  of  holding.  The  law  did  not 
enable  the  alien  husband  to  hold  a  freehold  in  land,  and  it  would 
be  contradictory  to  say  the  wife  by  reason  of  the  marriage  and 
death  of  husband,  should  have  a  freehold,  when  the  husband 
whilst  living  was  never  capable  of  holding.  She  could  not  by 
the  marriage  with  him  get  an  estate  greater,  or  held  by  a  dif- 
ferent tenure  from  his.  To  give  her  dower,  would  be  to  carve  the 
greater  out  of  the  less  interest — to  carve  an  indefeasible  freehold, 
out  of  an  estate  which  could  not  be  held. 

3d.  Does  it  escheat  subject  to  his  debts  ? 

It  does  not.  His  creditors  cannot  reach  it.  The  statutory  pro- 
vision as  to  estate  escheating  subject  to  debts,  only  relates  to  es- 
cheats, resulting  from  death  and  want  of  heirs  who  could  take; 
and  has  no  reference  to  a  case  where  the  escheat  arises  from  the 
purchase,  or  incapacity  of  the  tenant  to  hold. 

The  tenant  whilst  living  could  not  have  sold  the  land  to  pay 
his  debts,  and  thereby  prevent  the  states  enforcing  the  escheat. 
The  law  does  not  extend  the  rights  of  creditors  beyond  what  they 
would  have  been  if  debtor  was  living,  but  only  protects  them  from 
prejudice  by  his  death.  d.  mayes. 


376  DOWER.  .'         [CH.  LVIII. 

In  Missouri,  when  husband  dies  leaving  children  by  former 
wife,  a  latter  wife  cannot  claim  slaves,  absolutely  which  came  by 
her  to  the  marriage,  but  only  one-third  during  her  natural  life. — 
Sup.  Ct.  Decisions,  vol.  3,  191. 

DOWER OF  WHAT. 

§  J.  A  widow  is  entitled  to  dower  in  all  lands,  of  which  her 
husband  was  seized,  at  any  time,  during  coverture — of  which  her 
issue  might  by  possibility  have  inherited — 2  Black.  Com.  131^ 
Co.  Litt.  31;  Roper  on  Bar.  &  Feme.  139 — and  of  which  her  hus- 
band died  seized.     I  Root,  50. 

But  not  of  lands  alienated,  or  mortgaged  in  fee,  before  mar- 
riage.— 2  South.  865. 

And  she  cannot  have  dower  of  any  interest  less  than  a  freehold. 
6Sm.&M. 

Nor  of  any  estate  per  autre  vie — 5  Cowen,  388 — nor  of  lands 
entered,  but  not  granted — 5  Hayw.  278, 

§  8.  Seizin,  in  law,  is  equivalent  to  seizin  in  fact — Co.  Litt. 
36, 53;  22  Pick,  238. 289;  23  ib.  80, 84.  The  husband  must  have 
had  a  right  to  actual  seizin.  Legal  seizin  of  a  vested  remainder 
is  not  sufficient— 7  Mass.  253;  23  Pick.  80,  84. 

If  agent  takes  deed  in  his  own  name,  it  does  not  entitle  widow 
to  dower.     15  Mass.  495. 

Actual  possession,  or  receipt  of  rents,  is  prima  facie  evidence 
of  seizin — 5  Cowen,  299;  7  ib.  353. 

M.,  a  revolutionary  soldier,  died  in  1778,  leaving  an  elder  bro- 
ther, named  I.,  his  heir,  who  married  plaintiff  in  1783.  In  1786, 
I.  gave  a  quit-claim  deed  to  one  P.  of  all  lands  thereafter  granted 
by  the  state  to  M.  as  a  gratuity  for  military  services ;  and  subse- 
quently a  patent  issued  to  M.  of  land,  including  the  present  pre- 
mises, in  question.  I.  having  died,  his  widow  brought  ejectment 
— Held:  P.  was  estopped  from  denying  husband's  seizin,  and  that 
she  should  recover — also,  that  by  act  of  1803,  legal  estate  ^was 
vested  in  M.,  as  if  patent  had  issued  before  his  death.  2  Hill, 
145.  Cowen,  J.  dissented — heir-at-law  was  never  seized  of  any 
beneficial  interest,  and  no  dower  attached. — Ibid.  See  5  Hayw. 
278. 

But  seizin  for  an  instant,  not  absolute,  but  transitory,  where 
the  same  act  which  conveys  the  seizin,  also  divests  it,  does  not 


CH.  LVllI.]  DOWEK.  377 

entitle  the  widow  to  dower — as,  where  a  mortgage  is  executed 
simultaneously  with  the  conveyance  to  the  husband  to  secure  the 
purchase  money — 15  Peters,  21;  Roper  on  B.  &  F.  116;  4  Mass. 
566;  Cro,  Eliz.  503;  7  Halst.  22;  2  Southard,  565— or  where  the 
husband  has  given  a  mortgage  on  his  land  before  marriage — 2 
South,  565;  I  Har.  107;  see  also  to  the  same  effect,  CokeLitt.  31; 

14  Mass.  351;  4  Maryland  Repts.  550;    14  ib.  351;    1  Bay.  312; 

15  John.  458;  2  Gill.  &  John.  318;  4  Leigh,  30;  I  M'Cord's  Ch. 
rep.  358,  279;  3  Paige,  513;  I  Humph,  rept.  508;  I  B.  Monroe, 
259;  I  Cowen,  460. 

If  there  be  two  mortgages,  widow  holds  subject  to^the  last,  if 
the  first  is  paid  off— -6  Pick.  416. 

§  9.  At  common  law  a  widow  was  not  dowable  in  her  hus- 
band's equity  of  redemption ;  and  if  a  man  mortgages  in  fee  be- 
fore marriage,  and  dies  without  redeeming  the  mortgage,  the 
widow  cannot  have  dower  against  the  mortgagee.  12  Peters,  201; 
15  Peters,  21;  7  Greenl.  102. 

But  the  widow  may  claim  dower  out  of  an  equity  of  redemp- 
tion, till  foreclosure  of  the  mortgage— -I  Cowen, 460;  18  Pick.  299. 
But  she  cannot  claim  dower  against  any  person  who  having  the 
right  to  redeem  the  land,  has  paid  the  amount  due  on  the  mort- 
gage, until  she  has  contributed  her  due  proportion  of  the  money 
thus  paid,  according  to  her  interest.  5  N.  Hamp.  25;  7  Greenl. 
102. 

But  where  the  redemptioner  conveyed  his  equity,  to  a  purchas- 
er who  agreed  to  pay  off  the  mortgage,  and  also  the  balance  due 
grantor — which  was  done — the  widow's  dower  attached. — 12 
Mass.  227;  I  Connt.  559, 

So,  if  the  incumbrance  was  removed  by  widow  or  grantor,  or 
other  person  for  him.~-13  Mass.  525;  15  ib.  278;  13  ib.  162, 168; 
17  ib.  564;  10  ib.  364. 

So,  if  the  equity  be  sold  under  an  execution,  and  time  for  re- 
demption expired — but  the  mortgage  money  was  finally  paid  by 
tenant  of  mortgagor,  who  took  a  release  to  the  mortgagor. — 17 
Mass.  564. 

So,  where  owner  of  land  made  two  mortgages — wife  releasing 
— and  equity  was  sold  under  execution — Purchaser  afterwards 
48 


378  DOWER.  [CH.  LVIII. 

took  an  assignment  of  one  mortgage,  and  caused  the  other  to  be 
discharged  for  his  own  benefit,  but  without  taking  an  assignment, 
and  took  possession,  which  continued  more  than  three  years  af- 
ter assignmentj  when  husband  died — Held:  the  widow  of  mort- 
gagor having  no  notice  of  entry,  or  condition  broken,  was  enti- 
tled to  dower  subject  to  first  mortgage,  the  other  having  been  ex- 
tinguished by  discharge.     14  Pick,  98;  6  ib.  416. 

Where  A.  sold  land,  executed  a  title  bojid,  received  a  portion 
of  the  purchase  money,  and  afterwards  married — and  then  con- 
veyed the  land  to  the  purchaser  and  took  a  mortgage  of  the  pre- 
mises back,  to  secure  the  balance  of  the  purchase  money — Held: 
a  right  of  dower,  at  law,  vested  in  A's  wife.  2  Harr.  &  Gill. 
264. 

If  the  mortgage  or  lien  be  only  for  part  of  the  purchase  money, 
the  wife  may  claim  dower,  subject  to  such  incumbrance  ;  and  if 
money  should  be  assessed  in  lieu  of  dower,  commissioners  should, 
in  the  first  instance,  deduct  the  amount  of  the  incumbrance  from 
the  value  of  the  land,  and  assess  dower  out  of  the  residue. — 1 
Hill's  S.  Car.  rept.  200.* 

Where  the  purchaser  of  an  equity  of  redemption  redeems,  the 
widow  of  mortgagor  will  be  let  in,  only  on  contributing  her  quota. 
But,  if  such  person  takes  an  assignment  of  the  mortgage  debt, 
the  widow  can  redeem  only  by  paying  the  whole  mortgage  debt. 
5  Pick.  146.  But  she  may  be  enddwed  of  the  surplus  over  the 
mortgage.    4  M'Cord,  346. 

As  against  all  except  the  mortgagee,  the  widow  may  claim  her 
dower,  and  may  enforce  such  claim  at  law ;  yet  as  against  the 
mortgagee,  or  those  claiming  under  him,  her  only  remedy  is  by 
bill  in  equity,  and  payment  of  her  proportion  of  the  debt. — 3 
475;  14  ib.  98;  7  Greenl.  41;  14  Wend.  233. 


*Where  a  testator  having  mortgaged  his  real  estate,  devised  it  to  his  son,  who 
died  leaving  a  widow,  and  the  executor  sold  the  equity  of  redemption,  and  pur- 
chased it  himselt,  and  redeemed  the  mortgage,  paying  one-half  of  it  with  assets 
in  his  hands,  as  executor,  as  directed  in  the  will,  and  the  other  half  with  his  own 
money,  and  the  heirs  and  widow  of  the  son  elected  to  affirm  the  sale — Held,  the 
widow  was  entitled  on  account  of  her  right  of  dower,  to  the  interest  during  her 
life,  on  one-third  of  the  sum  for  which  the  equity  of  redemption  was  sold,  and  in 
one-third  of  the  amount  paid  out  of  the  testator's  estate,  towards  redeeming  the 
mortgage.     14  Pick.  345, 


CH.  LVllI.]  DOWER.  379 

§  10.  A  widow  is  entitled  to  dower  in  lands,  of  which  her  hus- 
band died  seized,  notwithstanding  dower  had  been  previously 
assigned  in  the  same  lands,  to  the  widow  of  her  husband's  father. 
And,  on  the  death  of  the  father's  widow,  the  son's  widow  be- 
comes entitled  to  one-third  of  the  portion  originally  assigned  to 
the  former — 11  Wendel,  592 — otherwise,  if  the  elder  tenant  in 
dower  release  to  the  tenant  in  fee.     13  Pick.  382. 

§  11.  The  widow  of  tenant  in  common  is  only  entitled  to  dow- 
er out  of  the  husband's  allotted  portion — 13  Mass.  504;  15  Peters, 
421.  Where  A.  and  B.  agreed,  by  parol,  to  exchange  farms,  and 
in  pursuance  of  such  agreement,  conveyed  to  each  other  their 
farms,  by  deeds  in  common  form — held,  such  proceedings  were 
not  evidence  of  an  exchange,  and  that  the  widow  of  A.  was  enti- 
tled to  be  endowed  in  both  farms.— I  New-Hamp.  65.  Several 
parcels  of  land  in  possession  of  the  same  tenant,  and  in  the  same 
town,  are  liable  to  dower.— Ibid. — And  a  widow  claiming  a  third 
of  an  undivided  half  of  a  farm,  may  recover  the  same  in  severalty. 
15  Wend.  410. 

§  12.  Widow  is  not  dowable  of  wild  lands,  unless  in  connec- 
tion with  cultivated  farm — 15  Mass.  164 — nor  of  land  alienated 
when  wild,  but  become  cultivated  by  labor  of  alienee — 1  Pick.21 
— but  otherwise,  if  not  alienated,  and  used  in  connection  with 
other  land.--?  Pick.  143, 144;  23  ib.  88.  But  in  Mississippi  the 
custom  is  to  endow  of  wild  lands. 

And  where  woodland  is  connected  therewith,  widow  shall  have 
only  woods  and  timber,  sufficient  for  supply  of  dower  estate — to 
be  used  thereon,  and  for  purposes  connected  with  its  proper  en- 
joyment.    17  Pick.  248. 

§  13.  At  common  law,  dower  was  claimed  out  of  a  trust  estate, 
because  courts  of  law  only  looked  to  the  legal  title ;  but  courts  of 
equity  would  in  such  case  relieve  against  the  right  of  dower. — 2 
Ves.631;  2Free'n.43;  3  Mas.  347;  3  Gill.  &  John.  398;  2  Hill's 
So.  C.  Ch.  R.  213. 

Now,  in  all  the  States  of  the  Union,  trust  estates  are  not  liable 
to  claim  of  dower  by  widow  of  trustee. — 2  Hill's  So.  Carolina  Ch. 
Repts.  213;  3  Hill's  N.  York  Repts.  96— see  also  3  Mason's  C.C. 
Repts.  347. 


380  DOWER.  [CH.  Lvni. 

In  Mississippi,  it  is  enacted,  that  "where  any  person  to  whose 
use,  or  in  trust  for  whose  benefit,  another  is,  or  shall  be  seized  of 
lands,  tenements  or  hereditaments,  hath  or  shall  have  such  inher- 
itance in  the  use  or  trust,  as  that  if  it  had  been  a  legal  right,  the 
husband  or  wife  of  such  person  would  thereof  have  been  entitled 
to  curtesy  or  dower,  such  husband  and  wife  shall  have  and  hold, 
and  may  by  the  proper  remedy  in  similar  cases,  recover  curtesy 
or  dower  of  such  lands,  tenements  or  hereditaments."  Acts  1822 
—How.  &  H.  353.* 

And  "  where  a  person  shall  die  possessed  of  lands  purchased 
of  the  United  States,  the  payment  for  which  has  not  been  com- 
pleted, such  lands  shall  be  subject  to  the  dower  of  the  widow,  in 
the  same  manner  as  if  the  title  had  been  complete  at  the  time  of 
the  death  of  the  husband."  ,  Ibid. 

§  14.  At  common  law,  dower  was  not  claimable  out  of  real  es- 
tate held  in  joint  tenancy.  The  mere  possibility  of  a  joint  tenan- 
cy prevents  doAver.  If  the  husband,  being  joint  tenant,  convey 
his  interest  to  another,  thus  simultaneously  part  with  his  in- 
terest and  destroy  the  right  of  survivorship,  no  dower  attached. 
15  Peters,  21.  But  the  right  of  survivorship  being  now  destroy- 
ed, dower  would,  in  such  case,  attach. 

Dower  may  be  assigned  either  separately  or  collectively  with 
other  lands.     1  Cowen,  460. 

DOWER ACCORDING  TO  WHAT    VALUE. 

1 .  As  against  the  Heirs. 

§  15j  The  value  of  the  property  at  the  time  of  the  assignment, 
shall  be  the  basis  upon  which  dower  shall  be  ascertained — if  her 
husband  died  seized  of  the  land.     I  Bailey's  S.C.  R.  227. 

Dower  is  due  of  iron  or  other  mines,  wrought  during  coverture, 
but  not  those  unopened  at  the  husband's  death.    I  Cowen,  460.t 

If  the  land  assigned  for  dower  contain  an  open  mine,  the  wid- 
ow may  work  it  for  her  own  benefit.     Ibid. 


*In  Kentucky,  widow  is  entitled  to  dower  in  her  husband's  equitable  title  to 
estate.     1  B.  Monroe,  91. 

tThe  husband  died  seized  of  fifty  acres — four  containing  a  slate  quarry,  [lartial- 
ly  above  ground — one-fourth  of  an  acre  dug  over,  by  sections  of  ten  to  twelve  feet 
square,  and  so  down  to  usual  depth,  and  then  beginning  on  the  surface  again — 
Held:  widow  is  dowahlr  of  the  whole  quarry.     10  Pick  460. 


CH.  LVIIl.]  DOWER.  381 

And  if  the  heir  has  improved  the  land  after  the  husband's  death, 
or  it  be  diminished  in  value  by  any  act  of  the  heir,  the  widow 
shall  be  endowed — in  the  former  case  of  the  improved  value,  in 
the  latter,  of  the  value  before  diminution.  The  reason  is,  her 
right  of  dower  was  consummated  at  the  death  of  her  husband, 
and  the  improvements  were  quasi  on  her  land. — Roper  on  Bar. 
&  Feme.  140.  For  feudal  reasons,  the  widow  holds  dower  of 
the  heir  or  reversioner ; — but  in  point  of  title,  her  right  is  from, 
and  a  continuation  of  that  of  her  husband ;  and  though  between 
husband's  death  and  the  assignment  of  her  dower,  a  seizin  of  the 
heir  or  another  person  intervened,  yet,  on  assignment  of  dower, 
her  title  relates  back  to  the  husband's  death.  3  &  4  Dev.  &  Batt. 
448. 

2.  As  against  the  Alienee. 

§  16.  As  against  the  alienee  of  the  husband,  the  value  at  the 
time  of  alienation,  is  the  true  criterion,  because  this  is  all  the 
alienee  can  recover  from  the  heir.  Rop.  on  B.  &  F.  140;  I  Dana, 
347;  ICowen,460;  I  Pick.  21. 

And  dower  must  in  such  case,  be  so  assigned  as  to  give  the 
alienee  or  tenant  possession  of  the  improvements,  if  practicable — 
I  Cowen,  460 — if  otherwise,  it  should  secure  to  alienee  a  suitable 
allowance  for  the  use  of  them. — lb.  &  9  Mass.  8,  218;  .10  ib.  80, 
83;  3  ib.  523,  544;  8  Pick.  532,  535;  1  Penrose,  697. 

Any  increased  value  from  extrinsic  causes,  (not  improvements 
by  the  alienee,)  must  be  included  in  the  assessment  of  dower. — 
6  Ohio  R.  77;  3  Mason's  C.  C.  R.  347. 

But  a  mortgage  does  not  bar  dower  in  the  improvements,  tho' 
the  wife  joined  it.    3  Mason's  C.  C.  R.  459. 

§  17.  A  widow  has  no  right  to  make  turpentine  on  land  assign- 
ed to  her  as  dower,  which  had  not  been  so  used  in  the  life-time 
of  her  husband.  But  she  may  rightfully  use  in  the  ordinary  mode 
trees  bored,  during  his  life-time,  and  may  box  new  trees  as  old 
ones  become  unfit  for  use,  so  as  not  to  enlarge  the  crop,  beyond 
the  extent  it  had  when  dower  was  assigned.  3  &  4  Dev.  &  Batt. 
179— See  also  I  Cowen,  460. 

nOWER— -HOW    ASSfGNEP. 

§  18.  At  common  law,  a  widow  was  entitled  to  the  dwelling- 
house  of  the  husband,  forly  days  after  his  death,  and  to  be  sup- 


382  DOWER.  [CH.  LVIII. 

ported  de  bonis  viri,  i.  e.  out  of  her  husband's  goods.  This  right 
was  called  the  "widow's  quarantine." 

Marriage,  during  forty  days,  forfeited  this  quarantine,  because 
the  widow  had  thereby  provided  for  herself.  Roper  on  Bar.  & 
Feme.  133. 

In  Mississippi — How.  &  H.  353,  sec.  45 — "A  widow  shall  re- 
tain full  possession  of  the  dwelling-house,  in  which  her  husband 
most  usually  dwelt  next  before  his  death;  together  with  the 
out-houses,  offices,  or  improvements,  and  plantation  thereinto 
belonging,  free  from  molestation  or  rent,  until  dower  is  assign- 
ed. 

§  19.  But  the  widow  is  not  entitled  to  enter  where  she  pleases, 
till  assignment  of  dower ;  and  trespass  lies  against  her,  (by  com- 
mon law,)  if  she  tarry  in  the  dwelling-house  beyond  quarantine. 
2  Bailey's  R.  103;  2  Hayw.  147.  In  Mississippi,  she  may  tarry 
till  assignment  of  dower.    Sec.  1,  ante. 

In  Connecticut,  a  widow,  by  her  husband's  death,  becomes 
tenant  in  common,  and  is  such  till  the  assignment  of  dower. — 
The  assignment  of  dower  is  not  requisite  to  her  right  of  entry. 

5  Count.  462. 

And  though  a  widow  cannot  ^nter  before  allotment  of  dower, 
yet  if  legally  in  possession,  she  may  retain  against  ejectment — 1 
Halst.  367.  And  where  land  is  assigned,  with  the  widow's  con- 
sent, and  that  of  the  heir,  the  title  commences  to  be  made  abso- 
lute by  report  of  commissioners  when  accepted,  and  in  the  mean 
time  she  may  enter  and  cut  growing  crops  sown  by  the  heir,  be- 
fore assignment,     17  Pick.  236. 

§  20,  The  heir  must  assign  dower  to  the  widow — Rop.  on  Bar. 

6  Feme.  138 — or  the  ferre-tenant,  or  sheriff.  An  infant  must,  and 
may  assign  it  by  guardian.     I  Pick,  314. 

The  assignment  of  dower  by  the  sheriff,  is  most  beneficial  to 
the  widow.  For  if  she  accept  an  assignment  of  dower,  against 
common  right,  she  will  be  liable  to  incumbrances  charged  on 
the  land  by  the  husband  during  coverture.  Coke  Litt,  32,  b,  34; 
19  Edward  3d,  154. 

Thus  if  the  heir  assign  dower,  and  the  widow  accept  one  of 
three  acres,  which  is  subject  to  rent  granted  by  husband  during 
marriage,  the  assignment  is  good  and  binding,  and  in  this  case 


CH.LVIII.]  UOWER.  383 

two  parts  of  the  widow's  acre  would  have  been  subject  to  the  dis- 
tress of  the  grantee.  Perkins,  sec.  330;  Roper  on  Bar.  &  Feme. 
137. 

Where  some  of  the  heirs  are  minors,  those  who  are  of  age  may 
assign  dower  by  deed  setting  out  the  metes  and  bounds.  2  South. 
865;  ib.  321.* 

§  21.  If  the  heir,  while  a  minor,  assign  too  much,  on  attaining 
twenty-one — or  in  case  of  his  death  before  that  age,  then  his  heir, 
— on  attaining  the  age  of  twenty-one  years,  may  have  a  writ  of 
admeasurement  of  dower.  This  writ  is  only  applicable  to  excess 
of  quantity,  and  if  the  widow  has  improved,  so  as  to  increase  the 
value,  or  if  of  more  value  from  open  mines,  this  writ  does  not  lie, 
for  the  heir.  And  if  the  heir  assign  too  much,  his  heir  cannot 
have  this  writ,  because  bound  by  his  acts.  Rop.  on  B.  &  F.  citing 
various  authorities,  p.  142. 

An  infant  heir,  after  reaching  the  age  of  21  years,  cannot  enter 
and  thereby  defeat  dower,  as  the  claim  for  excess  reaches  only 
the  surplus,  which  can  be  ascertained  only  by  admeasurement. — 
Ibid. 

If  the  widow  brought  her  writ  of  dower,  the  heir  shall  not  have 
his  writ  of  admeasurement,  for  it  is  presumed  the  court  took  care 
of  his  interest;  but  if  the  sheriff  assigned  an  excess,  the  heir  may 
have  a  scire  facias.    Ibid.  145. 

§  22.  In  Mississippi,  it  is  provided  that,  "On  petition  of  a  wid- 
ow, to  the  Judge  of  the  Court  of  Probates,  of  the  county  where 
her  husband  usually  dwelt,  next  before  his  death,  setting  forth 
the  nature  of  her  claim,  and  particularly  specifying  the  lands, 
tenements  and  hereditaments  of  which  she  claims  dower,  and 
praying  that  her  dower  may  be  allotted — the  court,  thereupon, 
shall  issue  a  writ,  directed  to  the  sheriff,  commanding  him  to 
summon  five  discreet  freeholders  as  commissioners,  connected 
with  the  parties  neither  by  affinity  or  consanguinity,  and  entirely 
disinterested — who,  upon  oath,  (which  oath  the  sheriff  is  hereby 


♦Assignment  of  dowcr  may  bo  without  instrument  in  writing — 1  Pick.  189,  314; 
23  ib.  88.  If  by  parol,  it  will  bind  the  owner,  as  against  her — 23  ib.  30.  Record 
of  assignment  in  Probate  court,  is  evidence  that  it  was  made,  on  the  widow's  ap- 
jplication.     10  Pick.  369. 


384  •     DOWER.  fCH.  LVIII. 

authorised  to  administer,)  shall  allot  and  set  oflf,  by  metes  and 
bounds,  to  the  said  widow,  one-half  in  case  there  be  no  child  or 
children,  or  descendants  of  them ;  and  in  case  there  be  a  child  or 
children,  or  descendants  of  them,  one-third  part,  according  to 
quantity  and  quality  of  all  the  lands,  tenements  and  heredita- 
ments in  said  county,  of  which  the  husband  died  seized  and  pos- 
sessed, or  had  before  conveyed,  whereof  the  said  widow  had  not 
relinquished  her  right  of  dower,  according  to  law,  and  shall  put 
her  in  possession  of  the  same — which  possession  shall  vest  in 
her  an  estate  for  her  natural  life.  And  where  she  has  claims  to 
dower  in  lands  lying  in  different  counties,  she  may  proceed  in 
the  Probate  court  of  the  county  where  such  lands  lie,  and  make 
recovery  in  manner  as  is  herein  directed.  And  the  sheriff  and 
commissioners  shall  also,  at  the  same  time,  allot  and  set  off  to 
such  widow  her  portion  of  the  personal  estate  of  which  her  hus- 
band died  possessed,  and  to  which,  by  this  act,  she  is  entitled ; 
which  part  and  portion  shall  be  and  enure  to  such  widow,  her 
heirs,  executors,  administrators  and  assigns,  forever."  Chap.  34, 
sec.  43--H0W.  &  H.  p.  352. 

"  The  proceedings  upon  such  petitions  for  dower,  shall  be  in  a 
summary  way ;  and  the  court  shall  at  the  first  term  when  such 
petition  is  filed,  proceed  to  hear  and  determine  the  same,  and 
make  such  order  and  decree  in  the  premises  as  shall  be  just  and 
equitable,  according  to  the  rights  of  the  petitioner,  and  others  in- 
terested in  the  distribution  of  the  estate  of  the  testator  or  intes- 
tate— Provided,  that  the  party  petitioning  for  dower  shall  give 
ten  days  notice  to  the  executor  or  administrator,  by  serving  him 
with  a  copy  of  said  petition.  And  where  there  is  no  executor  or 
administrator,  or  where  the  widow  shall  be  the  executrix  or  ad- 
ministratrix, then  she  shall  give  the  said  notice  by  advertisement 
in  one  of  the  newspapers  published  in  this  State,  nearest  to  the 
residence  of  such  wadow,  to  be  published  four  times  in  succes- 
sion.    How.  &  H.  sec.  44,  p.  352. 

§  23.  The  jurisdiction  of  the  Court  of  Probates,  by  a,n  express 
provision  of  the  Constitution,  extends  to  the  subject  of  dower ;  and 
it  is  immaterial  by  what  party  the  widow's  claim  is  opposed. — 
The  court  can  decree  dower  against  all  the  world. 


CH.  LVIII.]  '  DOWER.  385 

§  24.  Dower  must  be  by  metes  and  bounds,  if  divisible.  If 
dower  be  divisible,  and  sheriff  does  not  return  seizin  by  metes 
and  bounds,  it  is  void,  unless  sufficiently  certain,  what  is  assign- 
ed, or  unless  he  assign  one  manor  certain  in  lieu  of  dower  in  an- 
other manor.     Coke  Litt.  34;  Roper,  137;  1  Penrose,  709. 

If  the  sheriff  abuse  the  trust,  and  commit  fraud  or  oppression 
by  illusory  or  malicious  assignment,  or  refusing  to  assign  by  metes 
and  bounds,  the  court  will  imprison  him.  Roper,  137;  Palm. 265; 
Keb.  743. 

§  25.  In  bill  or  proceeding  for  dower  against  the  purchaser, 
the  dower  must  be  laid  off  by  metes  and  bounds  in  some  part  of 
the  land,  not  improved  by  the  purchaser,  if  this  can  be  conven- 
iently done ;  and  if  not,  then  to  be  assigned  out  of  the  whole  ac- 
cording to  the  value  thereof,  at  the  time  it  was  alienated.  4  Wash. 
C.C.R.305.* 

§  26.  If  the  property  be  indivisible  in  its  nature,  then  impo- 
tentia  txcusat  legem. — Litt.  sec.  44.  And,  in  such  case,  a  pro- 
portion of  the  profits,  or  the  separate  alternate  enjoyment  of  the 
whole,  for  short  proportionate  periods,  may  be  assigned  for  dower. 
1  Cowen,460;  2  Hill's  (N.  Y.)  R.  543. 

Where  the  subject  was  a  village  lot,  and  the  assignment  was 
made  so  as  to  give  the  widow  particular  rooms,  with  the  right  to 
stairway,  &c.  so  as  to  afford  ingress  and  egress  for  the  enjoyment 
of  the  rooms,  the  tenant  cannot  object,  though,  it  seems,  the  wid- 
ow can.    2  Hill,  543. 

(Whether  rent  of  land  can  be  assigned  by  commissioners  to 
widow — query.)     lb. 

Of  a  mill,  widow  may  have  third  toll  dish — or  of  profits  though 
uncertain,  one-third — Co.  Litt.  32.  So,  one-third  of  stallage,  of 
a  fair,  of  an  office,  of  the  keeping  of  a  park,  of  a  dove-house,  of 
a  piscary,  of  courts,  and  of  the  third  sheaf  of  tithe  of  corn. — Coke 
Litt.  32,  a.;  Brownlow,  126;  Gilbert,  (Dower)  371. 


*Dower  being  assigned  in  the  southerly  half  of  dwelling,  with  certain  ease- 
ments in  the  north  half,  and  other  privileges — the  widow  as  administratrix  of  her 
husband  subsequently  sold  the  north  halC  describing  the  same  as  said  dwelling- 
house,  &c.,  not  assigned  to  her  as  dower — Held,  on  her  death  the  easements  re- 
mained attached  to  the  estate  in  the  hands  of  the  heirs.    21  Pick.  278. 

49 


386  DOWER.  [CH.  LVllI. 

In  all  cases  assignment  must  be  made,  the  law  not  allowing 
the  same  person  to  elect  and  divide.  Dyer,  343 — Coke  Litt. 
34— b. 

§  27.  Assignment  must  be  made  of  land  subject  to  dower,  or 
of  a  rent,  or  some  other  profit,  issuing  out  of  the  same — as,  of  so 
many  bushels  of  wheat  annually.  Whence,  it  follows,  that  as- 
signment of  leasehold  lands  in  satisfaction  of  dower,  or  of  rent, 
granted  out  of  such  land,  is  not  a  good  legal  assignment,  and  no 
bar  to  the  widow's  demand  of  dower.  But  if  grant  of  rent  be  by 
deed,  the  deed  is  an  estoppel,  and  the  widow  will  be  bound  by 
grant  of  assignment.     Coke  Litt,  34;  Dyer,  91. 

And  rent,  granted  out  of  a  boarding-house,  of  which  the  widow 
is  dowable,  in  lieu  of  dower,  is  a  good  assignment.  Perk.  sect. 
405, 

§  28,  The  assignment  must  be  absolute,  and  therefore  a  condi- 
tion annexed  is  void,  and  the  widow  may  recover.  Roper  on 
B,&F.  139.* 

Where  commissioners  for  measurement  of  dower,  assess  a  sum 
of  money  to  be  paid  in  lieu  of  dower,  they  must  return  the  ap- 
praised value  of  the  land,  as  well  as  the  sum  assessed,  that  the 
court  may  know  the  basis  of  their  assignment, — 1  Bailey's  R.  227. 
And,  it  must  be  of  the  entire  value,  as  well  as  the  sum  assessed  in 
lieu  of  dower.  But,  if  the  commissioners  have  been  on  the  land 
and  appraised  it,  they  may  be  permitted  to  amend  the  return,  so 
as  to  exhibit  the  entire  value,    lb.  343. 

The  rule  is,  to  assess  the  sirth  of  the  value  of  the  entire  fee,  as 
equivalent  to  widow's  estate  for  life,  in  one-third  of  the  land. — 
And,  as  a  general  rule,  the  same  proportion  should  always  be  a- 
dopted  in  assigning  dower,  except  in  the  case  of  extreme  youth 
on  the  one  hand,  or  age  or  infirmity  on  the  other.    lb.  227. 


♦Under  act  of  1784,  the  jury  cannot  assign  the  whole  of  the  real  estate,  on  the 
ground,  that  all  is  necessary  to  subsistence.  The  act  gives  her  one-third  of  the 
estate  of  which  her  husband  died  seized,  comprehending  mansion-house  and  offi- 
ces— or  if  this  cannot  be  done  without  injustice  to  the  children,  then  such  part  or 
portion  as  may  be  sufficient  to  afford  her  a  decent  subsistence.  The  mansion- 
house,  &c.  is  not  in  addition  to,  but  part  of  her  third,  and  if  the  whole  be  allotted 
by  the  jury,  when  the  husband  had  no  other  realty,  the  report  will  be  set  aside. 
4Dev,&Batt.  501. 


CH.  LVllI.J  DOWER.  387 

§  29.  Where  the  heir,  administrator,  and  widow,  agreed  to  sell 
slaves  of  intestate  and  divide  tlje  proceeds,  the  widow  is  entitled 
not  merely  to  the  use,  for  life,  of  the  proportion  of  the  money, 
(giving  bond  with  security  for  repayment  to  heirs,  at  her  death,) 
but  to  so  much  absolutely  as  her  life-estate  in  the' said  slaves  may 
be  worth,  having  reference  to  their  productiveness  by  hire,  &c, 
1  Yerger,  96. 

§  30.  In  the  assignment  of  dower,  commissioners  must  regard 
rents  and  profits  only  of  the  estate,  of  which  dower  is  assigned, 
and  to  set  off  to  the  widow  such  part  as  will  yield  her  one-third  of 
the  income  ascertained,  in  parcels  best  calculated  for  convenience 
of  herself  and  heirs.    4  Mass.  533;  12  ib.  454;  15  ib.  164, 167. 

Dower  must  be  assigned  out  of  the  whole  inheritance,  and  not 
in  piece-meal,  according  to  the  various  rights  of  the  person  in- 
heriting the  estate.     1  Pen.  (N.  J.)  281. 

The  widow  is  not  entitled  to  an  action  of  assumpsit  for  use  and 
occupation  by  tenant  from  year  to  year,  for  rents  accruing  after 
the  death  of  the  husband  and  before  the  assignment  of  dower, 
though  no  damages  were  given  to  her,  when  dower  was  assign- 
ed.    10  Yerger,  472. 

Nor  will  equity,  after  assignment  of  dower  on  petition  at  law, 
entertain  a  bill  for  the  mesne  profits,  during  the  detention  of  the 
dower — unless  some  equitable  circumstances  exist,  as  loss  or  de- 
struction of  title-deeds,  or  a  discovery  be  necessary.     1  Murph.  128.. 

Damages  for  detention  must  be  prayed  for,  when  dower  is  as- 
signed—-Ibid. — and  if  not  given,  they  cannot  be  afterwards  re- 
covered.— IMd. 

In  proceeding  by  petition,  dower  having  been  assigned,  the 
suit  is  at  an  end.  Any  proceeding  to  set  aside  the  inquisition, 
as  scire  facias,  writ  of  error,  or  of  admeasurement,  or  bill  in  equi- 
ty— is  in  the  nature  of  a  new  suit.    4  Dev,  &  Batt.  501. 

§  31.  The  widow  does  not  require  assistance  of  the  heir,  but 
brings  her  action  against  any  person  who  has  the  freehold,  whe- 
ther heir  or  any  other  person.  She  may  sue  disseizor,  abator,  in- 
truder ;  and  hence  these  persons,  though  holding  the  freehold  by 
wrong,  may  assign  her  dower,  and  thereby  bind  those  who  have 
the  right-"3  and  4  Dev.  &  Batt.  448;  12  Mass.  485-"though  a 
paramount  dormant  title  be  in  a  third  person.     16  Mass.  53. 


388  DOWER.  [CH.  LVIII. 

Where  dower  is  claimed  of  one  as  tenant  in  possession,  it  is  a 
good  plea  in  bar  that  he  is  not  in  possession.     1  Mass.  469. 

If  a  separate  and  distinct  action  be  brought  for  damages,  it  must 
be  brought  against  the  tenant  of  the  freehold,  and  not  tenant  from 
year  to  year.     10  Yerger,  493. 

Widow  may  pray  by  writ  of  dower  that  damages  be  assessed, 
and  the  court  will  order  an  issue  to  be  made  up  between  the  heir 
and  widow,  and  submitted  to  a  jury — 2  Murph.  79 — and  if  right 
of  dower  is  denied,  in  Tennessee,  (under  act  of  1784,  authorizing 
widow  to  petition  the  Circuit  court,)  a  jury  must  be  empannelled. 
10  Yerger,  493.  If  the  right  of  dower  is  not  disputed,  a  writ  of 
enquiry  is  proper. — Ibid. 

§  32.  A  widow  may  be  endowed  of  lands  conveyed  away  by 
her  husband  in  fraud  of  her  right  of  dower,  and  may  recover  dam- 
ages for  detention  thereof.     1  Humph.  1. 

If  the  deed  be  only  voidable,  no  dower  will  attach,  because 
there  was  no  seizin  at  his  death ; — but  if  deed  was  void,  then 
seizin  remained  in  him,  and  dower  will  attach.  3  &  4  Dev.  & 
Batt.  449. 

But  mere  want  of  consideration  will  not  make  fraudulent  a  con- 
veyance to  children,  as  to  wife,  without  an  inltrdion  to  defravd 
her.     1  Humph.  459. 

A  husband  conveyed  real  estate  to  his  children,  and  put  it  in 
the  hands  of  third  person  for  delivery  at  his  death — held :  such 
deed  was  effectual  from  time  of  its  delivery,  and  not  void  or  fraud- 
ulent, as  against  the  widow.    5  Count.  317. 

A  deed  executed  in  trust  by  husband,  to  secure  usurious  inter- 
est, is  void  as  against  widow's  claim  of  dower ;  and  she  is  not 
bound  to  await  the  action  of  the  heirs,  as  against  one  holding  ad- 
versely under  the  deed.    4  Dev.  &  Batt.  442. 

Probate  courts  cannot  adjudicate  conflicting  rights  to  land,  in 
proceedings  by  petition  for  dower,  but  will  leave  the  parties  to 
their  appropriate  legal  remedies.  3  How.  205;  1  Sm.&M.  527, 
cited  Jan'y.  term,  1846,  in  case  of  Hayslip's  adm'r.  vs.  P.  Noland; 
6  Sm.&M. 

§  33.  One  claiming  under  husband,  is  estopped  from  denying 
husband's  claim  against  widow's  claim  of  dower,  and  cannot  for 
that  purpose  set  up  conveyances  from  third  persons  subsequent 


CH*  LVIII.]  DOWER.  389 

to  commencement  of  suit  and  plea  thereto.  4  Dev.  &  Batt.  442; 
3Harr.(N.J.)437,452;  2  South.  285, 265;  2  Green.  125;  3  How. 
360. 

Where  both  claim  under  the  same  person's  title,  it  cannot  be 
disputed,  unless  one  show  a  better  title.    4  Dev.  &  Batt.  449. 

§  34.  In  an  action  for  dower  where  issues  are  joined  on  the  de- 
mandant's marriage,  and  on  her  husband's  seizin,  the  tenant  can- 
not avail  himself  of  any  improvements  made  by  him,  since  the 
husband's  alienation.    10  Mass.  80. 

And  where,  to  a  writ  of  dower,  the  defendant  being  a  purchas- 
er, pleaded  that  he  could  not  deny  the  demandant's  right,  but  had 
made  improvements,  and  had  assigned  to  the  demandant  one,  full 
ihird  of  the  premises,  as  they  were  at  the  date  of  the  alienation — 
Held :  on  demurrer,  plea  was  bad,  as  a  plea  in  bar,  and  must  be 
construed  as  admitting  dower  in  the  premises,  without  the  im- 
provements.*   8  Pick.  532. 

Where  right  of  dower  is  alleged  and  not  denied  in  the  plead- 
ings, the  demandant  need  not  prove  it.     10  Mass.  80. 

In  case  of  a  petition  for  dower,  the  defendant  need  not  answer 
on  oath,  but  may  plead  his  defence.    2  Hayw.  146. 

Non-age  of  the  heir  is  no  bar  to  an  action  of  dower.  Roper  on 
B.  &  F.  146,  150. 

§  35.  A  right  of  way  over  the  husband's  lands,  is  appurtenant 
to  dower,  and  expires  with  it.     15  Mass.  130. 

§  36.  In  the  demand  of  dower,  the  description  will  be  suffi- 
cient, if  it  gives  notice  to  the  tenant,  what  land  the  demand  refers 
to. — 22  Pick.  283.  If  the  land  may  be  known  by  description, 
it  is  not  necessary  to  set  forth  metes  and  bounds.  Ibid.  283, 287; 
10  Mass.  80. 

But  the  description  must  be  so  certain,  as  that  seizin  may  be 
delivered  by  the  sheriff,  without  reference  to  any  description 
dehors  the  writ ;  and  no  defect  can  be  cured  by  reference  to  any 


*In  proceedings  for  dower,  the  tenant  who  derives  his  right  from  the  husband, 
cannot  deny  his  seizin.     3  How.  360. 

The  statute  assigning  dower  regards  the  children  of  the  former  marriage  in  de- 
termining the  extent  to  which  the  wife  of  the  second  marriage  is  dowable  in  the 
property  of  the  husband.    2  How.  692. 


390  *      DOWER.  [CH.  LVIIL 

existing  conveyance.    22  Pick.  283;  23  ib.  80 — See  statute,  sec. 
22,  ante.  p.  383. 

§  37.  The  order  of  the  court  appointing  commissioners  to  as- 
sign dower  and  divide  lands,  must  be  upon  notice  to  all  per- 
sons interested — otherwise  it  is  voidable.  Holdeiman  vs.  Hold- 
erman's  heirs,  B.  Monroe's  R.  385. 

How  the  present  value  in  money  is  to  be  ascertained,  see  Davis 
vs.  Logan's  heirs,  342. 

(The  finding  of  an  annual  value,  where  the  husband  did  not 
die  seized,  is  illegal,  nor  can  the  demandant  in  such  case  recover 
costs. — By  stat.  of  Merton,  2  Henry  HI.  ch.  1;  6  Edward  I.  ch.  1; 

2  Saund.  44,  e.  [45]  note.)    See  also  on  this  subject,  3  Yeates,  38: 
4  Dallas,  212;  5  Sergt.  &  Rawle,  289;  15  ib.  72;  17  ib.  297,  and 

3  Penrose  &  Watts,  454. 

§  38.  It  is  only  where  the  husband  died  seized  of  the  land,  that 
damages  and  costs  can  be  assessed  against  the  defendant,  or  any 
judgment  for  money  can  be  given.  3  Pennsylvania  R.  454;  3 
Harr.  158. 

Where  the  husband  died  seized,  in  dower  unde  nihil  habet, 
the  plaintiff  may  recover  the  whole  amount  of  damages,  from  the- 
defendant  in  possession,  though  there  may  have  been  several 
tenants  of  the  freehold  since  the  death  of  the  husband,  and  the 
tenant  may  have  been  only  a  short  time  in  possession. — 7  Watts, 
533.  It  is  not  necessary  in  dower,  under  nihil  habet,  that  the  de- 
fendant be  tenant  in  fee.  A  tenancy  of  the  freehold  is  suificient. 
Ibid. 

§  39.  At  common  law,  no  damages  were  allowed  on  judgment 
for  dower.— 10  Ohio  R.  18;  2  Bailey,  243.  Whether  entitled  to 
rents  and  profits,  damages  and  costs,  and  from  what  time — query? 

4  Wash.  C.  C.  R.  305. 

And  the  heir  on  whom  the  duty  rests  to  assign  dower,  may 
now  by  plea  of  tout  temps  prist,  avoid  damages — Roper  on  B.  &. 
F.  143 — Provided,  the  heir  has  offered  to  assign  immediately  af- 
ter the  death  of  the  ancestor,  and  the  widow  has  refused  to  accept. 
Ibid.  145, 146. 

In  Ohio,  no  damages  on  petition  for  dower  allowed. — 10  Ohio 
R.18. 


OH.  LVIII.]     '  DOWER.  391 

The  rents  which  accrue  prior  to  the  assignment  belong  to  the 
heir.  But  he  is  answerable  to  the  widow  for  them,  as  damages 
for  not  assigning  dower.    2  Murph.  79. 

Damages  are  measured  in  actions  of  dower  by  the  annual  value 
of  the  land,  and  may  be  assessed  by  the  court,  with  the  demand- 
ant's assent.    6  Mass.  498-9. 

They  are  recoverable  from  the  time  of  the  demand  made  on 
him  who' is  the  tenant  of  the  freehold  at  the  time  of  such  demand. 
13  Pick.  382;  1  Dev.  &  Batt.  213. 

§  40.  Interest  will  not  be  allowed,  in  a  court  of  \a.w,  on  a  sum 
of  money  assessed  in  lieu  of  dower,  where  the  husband  died  seiz- 
ed. The  acts  of  1824-25,  (in  S.  Carolina,)  giving  interest  on  the 
assessment,  are  confined  to  cases  where  the  husband  aliened  dur- 
ing coverture.     1  Bailey's  S.  Car.  R.  229;  2  ib.  343. 

The  widow  is  entitled  to  interest  on  mesne  profits,  up  to  the 
time  of  asssigning  dower.    2  Hill's  S.  Car.  R.  429. 

§  41.  On  recovery  in  dower,  demandant  is  entitled  to  have  her 
costs.    1  lb.  140.* 

DOWER HOW    BARRED. 

§  42.  In  the  English  law,  the  wife's  remedy  by  action  for  her 
dower  is  not  within  the  statute  of  limitation.  Dyer.  224,  a.;  1 
Shep.  Touch.  28,  32;  9  Ves.  222.  The  3d  and  4th  William  IV. 
made  the  action  of  dower,  or  suit  for  rents  and  profits  of  dowable 
land,  subject  to  the  statute  of  limitations.  The  rule  varies  in  the 
diflferent  United  States. 

In  South-Carolina,  time  is  a  bar — 3  Dess.  Ch.  R.  555 — So,  in 
Mississippi--!  Sm.  &  M.  Ch.  R.  494. 

In  New-Hampshire  and  Maryland,  time  does  not  bar  dower — 
1  N.  H.  Cas.  107;  2  Gill.  &  John.  468. 

In  New- York,  the  English  rule  prevailed  till  changed  by  stat- 
ute.   6  John.  197. 


*The  commissioners  should  ascertain  whether  the  husband  died  seized  of  the 
lands  or  not,  and  if  so,  "of  what  estate,  the  time  of  his  death,  the  annual  worth 
or  value  of  the  land  in  all  issues,  according  to  their  true  value" — to  assess  the 
damages  of  the  demandant  on  account  of  the  detention  of  her  dower  over  and  a- 
hove  the  value,  as  also  over  and  above  her  costs.  3  Chitty's  pi.  603,  e<»cy.;  2 
Saunders,  331 ;  ib.  44,  e.  (45)  note;  Coke  Litt.  33  If  they  merely  find  he  is  seiz- 
ed, and  not  the  rest,  a  writ  of  enquiry  may  be  awarded  to  supply  the  omission — 2 
Saund.  44 — and  with  it  a  writ  of  seisin. — Ibid. 


DOWER.  [CH.  LVIII. 

In  Ohio,  the  act  of  limitations  of  1810,  operates  bar  of  dower 
after  21  years,  and  equity  will  refuse  its  aid,  after  that  time,  aside 
from  the  statute.    10  Ohio  R.  24. 

Where  the  widow  is  beyond  seas,  and  so  within  the  saving 
clause,  equity  will  not  allow  the  staleness  of  her  claim  to  be  set 
up,  in  bar  of  her  dower.     Ibid.  498. 

§  43.  At  common  law,  dower  will  be  defeated  by  the  determi- 
nation of  the  estate,  or  avoidance  of  the  title  of  the  husband,  by 
entry  for  a  condition  broken,  or  by  reason  of  a  defective  title.  So, 
dower  will  be  defeated  by  the  operation  of  collateral  limitations, 
when  the  limitation  happens.  3  Preston  on  Abst.  373;  Butler's 
note,  170,  to  Coke  Litt.  241,  a. 

As  a  generul  rule,  the  wife's  dower  is  liable  to  be  defeated  by 
every  subsisting  claim  or  incumbrance,  in  law  or  equity,  which 
existed  before  the  inception  of  the  title,  and  which  would  have 
defeated  the  husband's  seizin.    4  Kent's  Com.  50. 

If  evicted  by  paramount  title,  the  widow  will  be  entitled  ta 
be  endowed  anew,  in  the  other  lands  of  her  husband.  13  Mass. 
162,  168. 

§  44.  The  widow  may  be  barred  by  elopement — 1  Bailey's  S, 
Car.  R.  312 — divorce,  being  an  alien* — and  also  by  detaining  the 
title  deeds  or  evidences  of  the  estate  from  the  heir,  until  she  re- 
stores them.     Co.  Litt.  39;  Roper  on  B.  &  F.  150. 

If  the  husband  and  wife  levy  a  fine,  or  sufier  a  common  recov- 
ery, she  is  barred.  10  Co.  49,  b. — Plowd.  504 — (see  "Relinquish- 
ment," post.) 

So,  if  the  wife  leave  her  husband  by  compulsion  and  refuse  to 
return,  on  his  offer  to  take  her  back,  and  afterwards  lives  in  adul- 
tery.—1  Bailey's  So.  Car.  R.  312.  But  see  3  Hill's  New-York  R. 
95. 

A  decree  of  divorce  in  Kentucky,  is  no  bar  to  dower  of  lands 
in  Ohio.    10  Ohio,  27. 

By  the  law  of  Kentucky,  a  divorce  obtained  in  that  State  does 
not  protect  the  offending  party  from  the  penalties  of  bigamy,  if 
he  or  she  afterwards  marry.  Where  plaintiff,  married  in  Ken- 
tucky, and  was  there  divorced,  (she  being  .the  offending  party,) 

^See  ante,  pages  373, 374,  sections  5  and  6. 


<TH.  LVIII.]  nOWER.  393 

and  moved  to  Tennessee,  and  there  married — Held:  she  was  enti- 
Ued  to  lands  her  husband  died  seized  of.     1  Yerg.  110, 

§  45.  The  wife  may  be  barred  by  having  a  jointure  in  lieu  of 
dower.    Co.  Litt.  36,  b. 

A  jointure  is  a  competent  livelihood  of  the  freehold  to  the  wife, 
of  lands  and  tenements,  to  take  effect  in  profit  or  possession,  pre- 
sently after  the  husband's  death,  for  the  life  of  the  wife  at  least. — 
Roper  on  Bar.  &  Feme.  155,  8. 

Such  jointure  must  be  to  herself,  find  not  to  a  trustee — 3  P. 
Wms.  269;  3  Plowd.  277;  13  Ves.  443— otherwise  it  is  no  bar— 
lb.  It  must  be  of  a  freehold  in  the  lands,  for  the  life  of  the  wife. 
7  Mass.  153. 

This  rule  of  law,  founded  on  27  Henry  VIII.  is  much  soften- 
ed by  the  courts  of  Equity,  which  enforces  such  equitable  settle- 
ment as  an  equitable  bar.  1  Atk.  562,  563;  Bacon's  Abr.  Tit 
Jointure,  B.  5.  ,101.1 

And  jointure  on  an  infant,  before  coverture,  is  a  bar  to  dower, 
notwithstanding  her  infancy.  2  Paige,  511 — and  see  5Bro.  P. 
C.  570;  4BVo.  Ch.  R.  506. 

Covenant  of  wife,  in  marriage  contract  before  marriage,  not  to 
claim  dower,  is  no  bar — 7  Mass.  153;  15  ib.  110, 116 — And  a  pro- 
vision for  the  wife  in  such  settlement  is  no  bar  of  dower, — Ibid. 
And  her  covenant,  in  consideration  of  any  provision  not  to  claim, 
is  no  bar,  if  the  consideration  fail.     15  ib:  106. 

§  46.  It  is  also  settled,  that  a  collateral  satisfaction  consisting 
of  money  or  other  chattel  interest,  given  by  will  and  accepted  by 
the  wife  after  her  husband's  death,  will  constitute  an  equitable 
bar  of  dower.  But  it  must  be  declared,  in  express  terms,  to  be 
given  in  lieu  of  dower— 2  Ves.  572;  3  Ves.  249;  1  Ball.  415;  3 
John.  448;  7  Cowen,  287;  1  Yeates,  424;  1  Greenl.  150;  1  Jac. 
503;  2  Hill's  Ch.  48;  8  Paige,  325— or  by  clear  implication.    Ib. 

The  testator  left  his  wife  a  provision  in  lieu  and  bar  of  all  claim 
of  dower,  inheritance,  or  any  other  claim,  on  her  part — held,  that 
the  widow  was  not  excluded  from  a  distributive  share  of  real  pro- 
perty, purchased  by  the  testator,  after  making  the  will,  and  as  to 
which  he  died  intestate.  2  M'Cord's  Ch.  R.  382. 
50 


384  DOWER.  [CH,  Lvm. 

Devise  to  widow,  in  lieu  of  dower,  accepted  by  her,  is  a  good  bar, 
That  it  was  ivitndtd  so,  may  be  inferred  from  the  provisions  of 
the  will,  as  if  inconsistent  with  the  claim  of  dower.  But  incon- 
gruity must  be  jplain,  and  if  husband  devised  dwelling  and  part 
of  his  gardens  durante  viduitate,  with  certain  personal  property, 
&c.,  and  then  devised  his  farm  to  his  two  sons,  and  wife  accepted, 
held  no  bar. — 7  Cowen,  287.  Where  no  intention  is  expressed, 
or  plainly  inferrible,  that  legacy  is  to  be  in  lieu  of  dower — unless 
widow  seasonably  elect  to  waive  the  provision,  she  will  not,  (un- 
der statute  1783,)  be  entitled  to  dower.     12  Pick.  146. 

§  47.  The  widow  shall  elect,  and  not  take  both  as  dowry  un- 
der the  will.  3  Ves.  252;  1  Cox,  447;  1  Ves.  230;  2  Freem.  241; 
4  Monroe,  265;  7  Cranch.  370;  1  Sim.  &  Stu.  513;  3  Russ.  192; 
Amb.  682;  Jac.  503. 

Her  election  may  be  inferred  from  receiving  and  enjoying  the 
property  devised.  2  Dick.  467;  17  Ves.  277;  1  Edwd.  435;  7 
Dana,  6. 

In  some  cases  a  widow  has  been  allowed  to  retract  from  an  e- 

< 

lection  made  prematurely,  the  condition  of  the  estate  not  having 
been  then  known.    2  M'Cord's  Ch.  R.  280. 

A  widow  is  not  compelled  to  accept  before  the  estate  is  settled ; 
and  if  the  will  allows  her  an  annuity  until  such  settlement,  it  is 
no  objection  to  the  payment  of  the  annuity  that  she  has  not  elect- 
ed.    IMd. 

Where  testator  devised  to  his  wife  a  certain  part  of  his  house, 
and  personalty  during  her  life,  without  declaring  whether  the 
same  was  in  lieu  of  or  in  addition  to  dower — and  after  his  death 
the  widow  accepted  and  enjoyed  the  estate  devised,  though  less 
beneficial  than  dower,  fourteen  years,  and  then  demanded  dower 
—Hdd:  she  could  not  then  waive  and  claim  dower.  12  Pick. 
146. 

Where  testator  bequeathed  to  his  wife  personal  property  more 
valuable  than  the  whole  of  his  real  estate,  on  condition  of  her  re- 
linquishing dower,  and  the  wife  died  in  seven  days  after  the 
husband's  death,  without  waiving  the  provision  in  the  will,  or 
claiming  dower — hdd,  that  no  unreasonable  time  had  elapsed, 


CH.  LVIII.]  DOWER.  395 

within  which  she  could  make  her  election,  and  her  right  under 
the  will  was,  not  defeated.     10  Pick.  507. 

In  such  case,  the  will  being  obviously  more  advantageous  than 
dower,  the  presumption  is,  the  wife  would  have  elected  the  for- 
mer.    Ibid. 

Where  testator  devised  to  his  wife  during  widowhood  all  his 
property  subject  to  legacies  and  debts,  and  appointed  her  his  ex- 
ecutrix, with  full  authority  to  sell  his  real  estate,  during  her  wid- 
owhood, for  payment  of  his  debts,  and  for  her  benefit  and  that  of 
her  children ;  and  she  accepted,  and  within  two  years  sold  part 
of  the  realty,  under  the  authority  of  the  will,  and  soon  after  mar- 
ried again ;  and  after  the  second  marriage  she  sold  the  residue  of 
the  real  estate  for  the  payment  of  debts,  under  a  license  of  court, 
and  with  her  husband  executed  deeds  thereof  without  reservation 
of  her  right  of  dower,  and  being  under  no  misapprehension  of 
the  condition  of  the  estate;  and  sixteen  years  after  her  first  hus- 
band's death,  she  claimed  dower  in  the  land  thus  sold,  under  the 
license — Held,  that  she  had  accepted  the  provision  in  the  will^ 
and  was  barred  of  dower.     1  Metcalf,  57 — see  3  Ohio  R.  12. 

DOWER— -HOW  BARRED  OR  PREVENTED. 

§  48.  In  general,  a  testamentary  provision  by  the  husband,  in 
favor  of  the  wife,  either  in  land  or  money — if  he  say  nothing  a- 
bout  dower — will  not  compel  the  widow  to  elect ;  the  presump- 
tion being,  that  the  provision  was  intended  for  a  gratuity.  5  Hill's 
R.  206,  (N.  York.)    See  sec.  50. 

Otherwise,  if  a  contrary  intention  be  manifested  by  express 
words,  or  if  the  frame  of  the  will  be  such  that  the  wife  cannot  re- 
ceive both  the  testamentary  provision  and  her  dower,  without 
breaking  up  the  testator's  plan  of  disposing  of  his.  estate.  5  Hill, 
206,  (N.Y.) 

Upon  the  foregoing  distinction,  it  was  held,  that  where  testator 
devised  all  his  real  and  personal  estate  to  his  wife,  "during  her 
life,  or  so  long  as  she  should  remain  hi^  widow,  with  remainder 
to  his  children ;"  and  after  his  death  the  widow  entered  and  oc- 
cupied, under  the  will,  for  several  years,  and  then  married  a  se- 
cond husband,  she  was  entitled  to  dower.    Ibid. 


S96  DOWER.  [cH.  Lvirr, 

The  husband  being  joint  tenant,  an  action  for  partition  became 
necessary ;  and  widow,  as  devisee,  must  demand  it.  Jn  doing 
this,  she  no  more  waived  her  own  dower,  than,  (if  it  had  been 
subject  to  the  dower  of  any  other  person,)  the  latter  would  have 
been  defeated.  The  devisee  claimed  and  held  the  moiety  allot- 
ted to  her,  as  devisee,  subject  to  her  claim  for  dower ;  and  she  is 
not  estopped  by  her  demand  from  claiming  dower  in  the  other 
half  from  the  tenant.     1  Dallas,  419. 

§  49.  Equity  will  interpose  against  the  wife's  claim  for  dower 
in  the  following  case — 1st.  Where  the  implication  that  she  shall 
not  have  both  the  devise  and  the  dower,  is  strong  and  necessary — 
2d.  Where  the  devise  is  entirely  inconsistent  with  the  claim  of 
dower — 3d.  Where  it  would  prevent  the  whole  will  from  taking 
effect,  i.  e.  where  the  claim  of  dower  would  overturn  the  whole 
will  in  tofo.— 2  Ball.  418;  2Yeates,  389;  3  ib.  10;  Add.  351;  1 
Yeates,  424. 

Where  one  bequeathed  a  wife  certain  articles  of  furniture  and 
stock,  "together  wiih  the  interest  of  one-third  of  the  price  of  his 
real  estate  when  sold" — it  was  ruled,  that  the  bequest  being  ab- 
solutely inconsistent  with  and  repugnant  to,  the  claim  of  dower, 
the  widow  should  be  put  to  her  election.  2  Yeates,  302,  389, 
79. 

Where  one  devised  to  his  wife  sundry  specific  articles,  and 
also  "$200,  to  be  paid  to  her  one  year  after  the  sale  of  his  real 
estate,"  and  directed  that  his  wife  and  children  should  live  to- 
gether on  his  real  estate  and  equally  enjoy  the  profits  thereof, 
until  his  sons  should  come  to  the  age  of  twenty-one  years,  when 
he  directed  it  to  be  sold  and  the  proceeds  given  to  his  youngest 
sons,  &c. — Held:  there  was  no  such  repugnancy  in  this  devise, 
as  to  bar  the  widow's  claim  of  dower.  2  Yeates,  433;  see  also  1 
Binn.  566;  3  Yeates,  10. 

§  50.  In  Mississippi,  much  of  the  perplexity  growing  out  of  the 
question,  whether  a  devise  is  intended  to  be  in  lieu  of  dower,  is  re- 
moved by  establishing  a  rule  directly  opposite  to  that  just  consider- 
ed, and  under  the  operation  of  which  every  devise  to  a  wife  is  so 
considered,  unless  otherwise  declared. — The  words  of  the  statute 
are — "Every  devise  of  land,  or  any  estate  therein,  or  bequest  of 


CH.  LVIII.]  DOWER.  397 

personal  estate,  to  the  wife  of  the  testator,  shall  be  construed  to 
be  in  bar  of  her  dower  in  lands,  or  share  of  the  personal  estate, 
respectively,  unless  it  be  otherwise  expressed  in  the  will."  Act 
1821,  How.  &  H.  350. 

§  51.  It  is  further  enacted,  that  "a  widow  shall  be  barred  of 
her  right  of  dower  in  land  or  share  of  the  personal  estate,  by  any 
such  devise  or  bequest,  unless  within  six  months  after  the  au- 
thentication or  probate  of  the  will,  she  shall  deliver  or  transmit 
to  the  court  where  such  authentication  or  probate  hath  been,  a 
written  renunciation  in  the  following  form — "  I,  A.  B.  widow  of 

,  late  of ,  deceased,  do  hereby  renounce  and  quit  all 

claim  to  any  bequest  or  devise,  made  to  me  by  the  last  will  of  my 
husband,  exhibited  and  proved  according  to  law — and  I  elect  to 
take,  in  lieu  thereof,  my  dower,  or  legal  share  of  the  estate  of  my 
said  husband,  A.  B."  But  by  renouncing  all  claim  to  a  devise  or 
bequest,  or  devises  or  bequests,  of  personal  property,  made  to  her 
by  the  will  of  her  husband,  she  shall  be  entitled  to  the  legal  share 
of  the  personal  estate  of  her  husband,  which  shall  remain  after 
payment  of  his  just  debts  and  claims  against  him,  and  no  more." 
Acts  1821,  How.  &H.  360. 

And  again — "  If  the  will  of  the  husband  devised  a  part  of  both 
real  and  personal  estate,  she  shall  renounce  the  whole,  or  be  oth- 
erwise barred  of  her  right,  of  both  real  and  personal  estate." — 
Ibid.  351. 

But,  it  is  further  provided,  "  that  if  the  will  devise  only  a  part 
of  the  real  estate,  the  devise  shall  bar  her  of  only  the  real  or  per- 
sonal estate,  as  the  case  may  be — Provided,  nevertheless,  that  if 
the  devise  of  either  real  or  personal  estate,  or  of  both,  shall  be  ex- 
pressly in  lieu  of  her  legal  share  in  one,  or  both,  she  shall  according- 
ly be  barred,  unless  she  renounce  as  aforesaid.  But,  if  in  effect, 
nothing  shall  pass  by  such  devise,  she  shall  not  be  thereby  barred, 
whether  she  shall  or  shall  not  renounce  as  aforesaid — it  being  the 
intent  of  this  act,  and  consonant  to  justice,  that  a  widow  accept- 
ing or  abiding  by  a  devise,  in  lieu  of  her  legal  right,  shall  be  con- 
sidered as  a  purchaser,  with  a  fair  consideration."  Acts  1821 — 
How.  &H.  351— Sec.  45. 

And  further — "When  any  person  shall  die  intestate,  or  shall 
make  his  last  will  and  testament,  and  not  make  therein  any  ex- 


391  DOWJKR.  [CH.  LVm. 

press  provision  for  his  wife,  by  giving  and  devising  unto  her  such 
part  and  parcel  of  his  real  and  personal  estate  as  shall  be  fully 
satisfactory  to  her,  such  widow  may  signify  her  dissent  thereto, 
in  the  Probate  court  of  the  county,  wherein  such  last  will  and  tes- 
tament is  proved  and  recorded,  at  any  time  within  six  months  af- 
ter the  probate  of  such  will ;  and  then  and  in  that  case  she  shall 
be  entitled  to  dower  in  the  following  manner,  to  wit : 

1st.  One  third  part  of  all  the  lands,  tenements  and  heredita- 
ments, of  which  her  husband  died  seized  and  possessed,  or  had 
before  conveyed,  whereof  said  widow  had  not  relinquished  her 
right  of  dower,  as  provided  for  by  law ;  which  said  third  part 
shall  be  and  enure  to  her  proper  use,  benefit  and  behoof,  for  and 
during  the  term  of  her  natural  life ; — in  which  said  third  part 
shall  be  comprehended  the  dwelling-house  in  which  her  husband 
shall  have  been  accustomed  most  generally  to  dwell,  next  before 
his  death,  together  with  the  offices,  out-houses,  buildings,  and 
other  improvements  thereunto  belonging  or  appertaining.    But — 

2d.  If  there  be  no  child  or  children  of  such  testator  or  intes- 
tate, nor  descendants  of  them,  then  the  widow  shall  have  as  her 
dower,  one  half  of  the  real  estate,  as  aforesaid,  for  and  during  the 
term  of  her  natural  life — Provided,  that  if  it  shall  appear  to  the 
Probate  court  to  which  application  is  made,  that  the  whole  of  said 
dwelling-house,  out-houses,  buildings  and  other  improvements 
thereunto  appertaining,  cannot  be  applied  to  the  use  of  the  wid- 
ow, without  manifest  injustice  to  the  children  or  other  heirs — 
then  and  in  that  case,  such  widow  shall  be  entitled  to  such  part 
only  of  such  buildings  and  other  improvements,  as  the  court  may 
deem  reasonable  and  just."     Act  1822,  How.  &  H.  351. 

DOWER HOW  RELINQUISHED. 

§  52.  No  estate  of  a  feme  covert,  shall  pass  without  previous 
acknowledgment,  on  private  examination  of  her,  apart  from  her 
husband,  before  a  Judge  of  the  Supreme  Court,  Justice  of  the 
Peace,  (or  county  court,  now  obsolete,)  authorised  by  this  act  to 
take  such  acknowledgment,  that  "she  signed,  sealed  and  deliv- 
ered the  same  as  her  voluntary  act  and  deed,  fully  without  any 
fear  thereat,  or  compulsion,  of  her  husband,"  of  which  a  certifi- 
cate must  be  written  on  or  under  the  deed,  and  signed  by  the  of- 
ficer making  it.     How,  &  H.  345,  347. 


CH.  LVIII.]  DOWER.  399 

If  a  feme  covert  reside  abroad  in  the  United  States,  her  ac- 
knowledgment may  be  taken  before  the  Chief  Justice  of  the  Uni- 
ted States,  an  Associate  Judge,  or  District  Judge  of  the  United 
States  Court — or  any  Judge  or  Justice  of  the  Supreme  Court,  or 
the  Superior  Court  of  any  State  or  Territory  in  the  Union.  If  in 
a  foreign  kingdom,  then  before  any  court  of  law,  mayor  or  other 
chief  magistrate  of  any  city,  borough  or  corporation,  of  the  said 
foreign  kingdom,  state,  nation  or  colony,  in  which  said  party  re- 
sides, (or  in  which  the  witnesses  reside,)  certified  by  said  officer, 
&c.    Sects.  13,  14, 15.  How.  &  H.  346. 

-g  And  by  act  of  1844,  it  is  further  provided,  as  follows — "That 
when  any  person,  who  shall  have  executed,  or  may  hereafter  exe- 
cute, any  deed  or  conveyance  of  lands,  tenements,  or  heredita- 
ments, lying  and  being  in  this  State,  or  the  witness  or  witnesses 
thereto,  or  any  female  entitled  to  dower,  or  other  estate,  in  any 
lands,  tenements  or  hereditaments,  lying  and  being  in  this  State, 
shall  be  absent  from  or  reside  not  in  this  State,  but  in  some  other 
State  or  Territory  in  the  United  States,  then,  the  acknowledgment 
or  proof,  or  in  case  of  said  females,  the  examination  and  acknowl- 
edgment of  such  deed  or  conveyance,  may  be  taken  and  made 
before,  and  certified  by  the  judge  of  any  inferior  or  county  court 
of  record,  or  any  justice  of  the  peace  of  this  State  or  territory  and 
county  wherein  such  person,  witness  or  witnesses,  or  females, 
may  then  be  or  reside ;  and  shall  be  authenticated,  by  the  certifi- 
cate of  the  clerk  or  register  of  the  superior,  county,  or  circuit  court 
of  such  county,  with  a  seal  of  his  office  thereto  affixed,  or  if  made 
or  taken  before  and  certified  by  a  justice  of  the  peace,  shall  be 
authenticated  by  the  certificate  of  either  the  clerk  or  register  a- 
foresaid,  or  of  the  clerk  or  register  of  said  inferior  or  county  court 
of  record  of  such  county,  with  the  seal  of  his  office  thereto  affixed ; 
and  when  so  made  or  taken,  certified  and  authenticated  as  afore- 
said, the  same  shall  be  as  good,  valid,  and  eifectual,  as  if  it  had 
been  made  or  taken  before  and  certified  by  the  chief  justice  of 
the  United  States,  or  an  associate  justice  of  the  supreme  court  of 
the  United  States,  or  any  district  judge  of  the  same,  or  any  judge 
or  justice  of  the  supreme  or  superior  courts  of  any  State  or  terri- 
tory in  the  United  States,  as  is  provided  in  the  thirteenth  and  fif- 
teenth sections,  to  which  this  is  an  amendment  of  an  act,  entitled 


400  DOWER.  [CH.  LVIII. 

"an  act  concerning  conveyances,"  passed  June  13th,  1822 — or 
any  judge  of  the  High  court  of  Errors  and  Appeals,  judge  of  the 
circuit  court,  judge  of  probate,  notary  public,  or  clerk  of  any  court 
of  record  in  this  State,  and  shall  be  entitled  and  admitted  to  re- 
cord in  the  proper  office  of  record,  in  the  county  wherein  the  said 
lands,  tenements  or  hereditaments,  may  be  situated  and  lie. 

"A  ftmt  covert  may  convey  her  estate,  whether  in  fee,  or  of 
dower,  or  otherwise,  in  any  lands,  tenements,  or  hereditaments, 
lying  and  being  in  this  State,  by  her  deed,  acknowledged  and 
certified  according  to  the  provisions  of  the  19th  section  of  the  act 
to  which  this  is  an  amendment ;  or  may  by  power  of  attorney  ex- 
ecuted by  her,  together  with  her  husband,  acknowledged  and  cer- 
tified, according  to  the  provisions  of  said  section,  authorise  and 
empower  any  agent  or  agents,  to  sell  and  convey  the  interest  and 
estate  of  the  said  husband  and  wife,  (whether  the  estate  of  such 
wife  be  in  fee  or  of  dower,  or  otherwise,)  of,  in,  and  to  any  lands, 
tenements,  or  hereditaments,  lying  and  being  in  this  State,  and 
the  title  of  the  vendee  under  such  sale  and  conveyance,  shall  be 
as  valid,  as  if  directly  made  by  the  deed  of  said  husband  and  wife, 
acknowledged  and  certified  as  aforesaid." 

§  53.  The  certificate  of  the  acknowledgment  of  a  feme  covert, 
of  a  deed  conveying  her  interest  in  land  under  act  of  1790,  (in 
Pennsylvania,)  must  state  substantially,  that  she  was  separately 
examined,  that  she  knew  the  nature  and  consequences  of  the  act 
she  was  about  to  perform,  and  that  her  will  in  the  performance 
of  the  act  was  free ; — therefore,  a  certificate  stating  only  that  she 
was  of  full  age  and  separately  and  apart  examined,  and  contents 
made  known  to  her,  without  mentioning  her  voluntary  consent 
to  the  execution  of  it — is  insufficient.  4  S.  &  R.  472.  The  re- 
linquishment must  be  made  separate  and  apart  from  her  husband. 
1  Black.  381.  The  deed  must  be  acknowledged  agreeably  to  the 
act.     3Har.(N.J.)452. 

The  following  certificate  of  acknowledgment  by  husband  and 
wife,  was  held  sufficient  to  bar  dower  under  act  of  February,  1805, 
(in  Ohio) — "Before  the  undersigned,  within  and  for  said  county, 
personally  appeared  B.  D.  and  C.  D.  his  wife,  who  being  made 
acquainted  with  the  contents,  and  being  examined  separate  and 
apart,  the  wife  from  her  husband,  acknowledged  the  above  in- 


OH.  LVIII.]  DOWER.  401 

denture  to  be  their  act  and  deed,  for  the  uses  and  purposes  there- 
in mentioned.    .3  Ohio  R.  140. 

To  bar  the  widow,  by  deed  executed  under  the  act  of  1805,  it 
is  necessary  that  the  certificate  of  aciinowledgment  should  show 
that  the  wife  was  acquainted  with  all  its  contents.  6  Ohio  R. 
358. 

A  certificate  of  the  acknowledgment  of  a  deed  by  a  married 
woman,  for  the  conveyance  of  her  land,  should  exhibit  on  the  face 
of  it,  at  least  a  substantial  compliance  with  the  provisions  of  the 
act  of  1770.  Therefore,  if  the  certificate  state,  that  the  wife  per- 
sonally appeared  before  the  magistrate,  acknowledged  the  inden- 
tures to  be  their  act  and  deed,  and  desired  the  same  to  be  record- 
ed, they  being  of  full  age,  and  by  him  examined  apart,  it  is  in- 
sufficient.   6  S.  &  R.  49  &  143;  14  S.  &  R.  84.* 

§  54.  The  dower  of  a  feme  covert  cannot  be  barred  by  her  final 
execution  of  a  deed,  in  which  she  is  not  named  as  a  party.  7 
Ohio  R.  195. 

And  courts  will  not  construe  words  in  a  conveyance  renoun- 
cing doicer  according  to  the  act,  to  mean  inheritance ; — the  for- 
malities to  release  inheritance  by  a  feme  covert  must  be  complied 
with.  2  M'Cord's  (S.  Car.)  Ch.  R.  141.  (In  Mississippi  the  for- 
malities are  the  same  in  both  cases.) 

A  wife  may  join  her  husband  in  a  deed  expressly  relinquish- 
ing dower,  in  the  premises  conveyed,  or  by  her  separate  subse- 
quent deed,  in  which  his  sale  is  recited,  as  the  consideration  of 
her  relinquishment.  7  Mass.  14;  9  ib.  161,  173;  ib.  143, 149.— 
And  if  wife  join  in  a  deed  with  her  husband  in  token  of  relin- 
quishing her  dower,  but  without  words  of  grant,  she  is  estopped 
from  claiming  dower,  though  the  husband  had  previously  sold 
the  premises,  or  they  have  been  taken  in  execution.  8  Pick.  532. 
But  not  unless  the  deed  contains  words  expressing  or  implying 
an  intention  to  release  her  dower  in  the  lands  conveyed. — 9  Mass. 


*An  acknowledgment  of  a  deed  by  husband  and  wife,  in  Washington  county, 
Maryland,  where  they  resided,  before  A.  B.  and  C.  D. — who  were  stated  in  a  cer- 
tificate, from  the  clerk  of  the  court  of  the  county,  under  his  official  seal,  to  be 
Justices  of  the  peace  ot  that  county,  without  stating  they  were  the  chief  qfficen  of 
the  place,  or  any  proof  that  they  were  so,  is  not  good  within  the  act  of  1770. — 8 
S.  &  R.  268. 

51 


402  DOWER.  [CH.  LVlll. 

218;  13  ib.  223;  ib.  382.  Nor  where  she  duly  joins  and  after- 
wards grantee  recovers  judgment  and  satisfaction  against  him  for 
breach  of  covenant  of  seizin,  or  of  a  right  to  sell — 9  Mass.  143 — 
Nor  where  she  has  joined  in  a  mortgage,  and  the  husband's  ad- 
ministrator has  discharged  it,  although  before  such  mortgage  the 
Judge  of  Probate,  by  reason  of  her  release,  had  made  her  an  al- 
lowance out  of  the  personal  estate.     13  Mass.  525. 

Nor  by  a  release  to  a  third  person  under  whom  the  tenant  does 
not  claim. — 3  Metcalf,  40.  If  a  husband  and  wife  join  in  a  deed 
of  "all  their  right,  title  and  interest"  in  certain  premises,  the  wife, 
in  her  right,  as  to  one  quarter  thereof — and  at  the  close  of  the  deed 
they  executed  in  token  of  their  "conveyance  of  all  right,  title  and 
interest,  whether  in  fee  or  freehold,  in  the  premises" — Hdd:  the 
wife  will  thereby  be  barred  of  her  dower  in  her  husband's  three- 
fourths  of  land.     18  Pick.  9.* 

A  deed  executed  by  husband  and  wife,  she  being  under  eigh- 
teen years  of  age,  does  not  bar  her  right  of  dower.  10  Ohio  R. 
127;  7  How.  437,  and  'post.  p.  414,  (note.) 

§  55.  Where  wife  had  renounced  her  dower  in  favor  of  a  mort- 
gagee of  her  husband,  and  after  his  death,  on  marshalling  his  as- 
sets, in  a  court  of  Equity,  the  mortgage  debts  were  paid  out  of 
the  personalty — Hdd:  the  widow  was  entitled  to  dower,  and  a 
^um  of  money  assigned  in  lieu  thereof  was  ordered  to  be  paid  to 
her,  out  of  the  lands  which  were  ordered  to  be  sold  for  payment 
of  debts.    2  Bailey's  S.  Car.  R.  252. 

Other  creditors  have  a  right  to  aid  of  wife's  mortgage  for  pay- 
ment of  their  debts.     Ihid. 

§  56.  It  will  have  been  seen  by  the  foregoing  authorities,  that, 
though  dower,  be  a  freehold  estate,  it  may  be  transferred  or  re- 
linquished by  other  modes  than  a  regular  legal  conveyance — as, 
•by  such  acts  or  agreements,  as  serve  to  bar  the  action  for  dower, 
though  no  conveyance  be  executed.    3  Ohio,  13. 


*An  agreement  under  seal,  between  a  widow  and  the  guardian  of  her  hus- 
band's heirs,  stipulated  that  the  whole  of  one  parcel  of  his  lands  was  assigned  to 
her  for  life,  in  full  satisfaction  of  her  dower,  with  all  the  conditions  and  incidents 
of  dower,  and  the  land  assigned  proved  to  be  under  mortgage — this  was  an  assign- 
ment agaimt  common  right,  and  the  widow  was  barred  as  against  an  innocent 
purchaser  of  other  land  of  the  husband.  J  Pick.  314— and  see  ante.  sect.  20,  p, 
383. 


CH.  LVIII.J  DOWER.  4ff3 

But,  where  debtor  to  a  judgment  and  his  wife  sell  land  to  A., 
wife  of  debtor  relinquishing  dower  to  A. — A.  cannot  afterwards 
set  up  that  dower  as  a  separate  estate,  against  purchasers  under 
the  judgment. — 5  Ohio,  527.  For  dower  is  not  alienable,  till  du- 
ly assigned,  so  as  to  enable  the  grantee  to  maintain  an  action  for 
it,  in  his  own  name — for  it  lies  in  action  only.    Ibid. 

§  57.  Parol  evidence  is  inadmissible  to  show  a  parol  agree- 
ment between  the  husband  and  wife,  to  compensate  her  for  re- 
linquishing her  dower.    2  M'Cord's  Ch.  R.  274. 

Renunciation  of  dower  is  not  such  part  performance,  as  will 
admit  parol  testimony  to  enforce  specific  performance. — Ibid. 
276. 

The  fact  that  the  wife  has  renounced  her  dower,  raises  no  pre- 
sumption that  she  is  to  be  compensated,  in  order  to  let  in  parol 
evidence  of  an  agreement  to  compensate.    Ibid.  277.* 

A  widow  who  silently  stands  by  and  hears  sale  of  estate  pro- 
claimed free  of  dower,  is  barred.  2  Ohio,  509 — see  4  Dallas, 
300. 

§  58.  In  Mississippi,  where  a  husband  has  already  executed  a 
deed  of  lands,  which  is  recorded,  it  is  provided  that  a  wife  may 
subsequently  relinquish  her  dower  therein  as  follows: — ^"It  shall 
be  lawful,  where  any  deed  or  conveyance  shall  have  been  record- 
ed, and  the /erne  covert  hath  not  relinquished  her  right  of  dower, 
in  the  lands,  tenements  and  hereditaments  therein  mentioned,  for 
such  feme  covert  to  relinquish  her  right  of  dower  in  the  manner 
directed  by  this  act ;  and  the  certificate  thereof  shall  be  recorded 
in  the  court  where  such  deed  or  conveyance  may  have  been  re- 
corded, and  shall  be  as  good  and  effectual  in  law  to  release  and 
bar  her  right  of  dower  in  the  lands,  tenements  and  hereditaments 
in  such  deed  or  conveyance  mentioned,  as  if  the  same  had  been 
taken  at  the  time  such  deed  or  conveyance  was  admitted  to  re- 
cord." How.  &  H.  p.  347,  sect.  20 — See  also  ante.  sect.  54,  p. 
401. 


♦Husband  conveyed  land,  and  after  his  death,  his  widow,  for  a  nominal  consid- 
eration, conveyed  to  the  heirs  of  the  husband's  grantee,  all  her  right  and  title 
conveyed  by  her  husband — Held:  she  was  thereby  barred  of  her  dower.  2  Mot- 
calf,  41. 


404  '  DOWER.  [CH.  LVIli:( 

§  59.  A  magistrate  cannot  take  the  wife's  renunciation  of  dow- 
er, upon  a  conveyance  in  which  he  is  interested;  and  where  the 
purchaser  was  a  magistrate,  a  renunciation  before  him  was  held 
void,  although  the  conveyance  was  taken  to  a  stranger  in  trust 
for  the  children  of  the  purchaser,  and  the  latter  had  no  longer  any 
title  to  the  land.     1  Bailey's  S.  Car.  R.  421. 

A  renunciation  of  dower  must  be  perfected  at  the  time  it  was 
made;  and  when  taken  and  certified  by  magistrate  disqualified 
by  interest,  suppletory  evidence  that  it  was  made  by  the  wife 
freely  and  voluntarily,  will  not  avail. — Ibid. — and  see  2  M'Cord's 
Ch.R.117.* 

§  60.  By  act  of  Mississippi — How.  &  H.  166 — the  emancipa- 
tion of  slaves  does  not  bar  dower ;  but  those  not  freed  shall  be 
first  subjected,  and  if  insufficient,  then  the  freed  ones.  See  ante. 
154,  158. 

This  provision  is  now  rendered  useless  by  the  late  acts  prohib- 
iting negroes  to  be  emancipated.  See  anle.  p.  157 — Act  of  1842 
— and  see  Leech  vs.  Cooley's  adm'rs.,  6  Sm.  &  M. 

DOWKR— -IN  PERSONAL  ESTATE. 

No  dower  of  personal  property  was  allowed  at  common  law, 
but  widow  had  pars  rationabilis — Bracton's  Fleta — and  she  could 
recover  it  by  writ  de  rationahili  parte  bonorum,  (a  reasonable  por- 
tion of  the  goods)  of  her  husband — being  one-half,  if  no  children 
— and  one-third,  if  children  were  living. — 2  Bl.  Com.  492.  This 
law  is  now  obsolete  in  England. 

The  statute  of  Mississippi  declares  that — "  When  a  husband 
dies  intestate,  or  shall  make  his  last  will  and  testament,  and  not 
make  provision  therein  for  his  wife  as  aforesaid,  she  shall  be  en- 
titled to  share  in  the  personal  estate  in  the  following  manner,  to 
wit:  If  there  be  no  children,  or  if  there  be  but  one  child,  in  that 
case  she  shall  be  entitled,  out  of  the  residue  left  after  paying  the 
debts  of  the  deceased,  to  one  half;  but  if  there  be  more  than  one 
child,  in  that  case,  she  shall  be  entitled  to  a  child's  part  in  either 
case  in  fee  simple."    How.  &  H.  p.  352,  sec.  42. 


*A  deed  of  land  executed  by  husband  and  wife,  but  containing  no  words  of 
grant  by  the  wife,  does  not  convey  her  estate  in  the  land,  nor  her  right  of  dower. 
3  Mason's  C.C.R.  347. 


CH.  LVm.]  '  DOWER.  405 

The  widow  is  entitled  to  be  endowed  of  the  personal  estate  of 
her  deceased  husband,  according  to  the  law  of  the  domicil  of  the 
husband.    2Sm.&M.617. 

§  61.  Where  an  estate  is  insolvent,  a  widow  can  claim  no  dis- 
tributive share  in  the  personal  estate  of  her  husband,  nor  in  a 
lease  of  land,  (which  is  a  chattel  interest.) — Ware  &  Harper  vs. 
Washington,  Jan'y.  term,  1846,  High  Ct.  of  Errors  and  Appeals 
of  Mississippi — 5  Sm.  &  M.    See  ante.  sec.  51.  ~<l 

In  January,  1844,  the  case  of  Garland,  ex'r.  vs.  Rowan,  was  de- 
cided— in  which  it  was  settled,  that  the  widow  is  entitled  to  be 
endowed  of  the  personal  estate  of  her  deceased  husband,  accord- 
ing to  the  law  of  the  place  of  the  domicil  of  her  husband ;  and 
that  slaves  like  other  personalty,  are  distributed  and  widows  en- 
dowed thereof,  according  to  the  law  of  the  decedent's  domicil.* 

This  case  being  decisive  of  the  construction  of  the  statute,  un- 
der which  the  question  arose,  a  statement  of  it  with  the  opinion 
of  the  court  is  here  inserted. 

"  The  record  presents  these  facts :  John  A.  Rowan  being  a  cit- 
izen of  the  state  of  Virginia,  and  domiciled  therein,  departed  this 
life  in  the  year  1843,  having  previously  made  his  will.  That 
Samuel  Garland,  (the  plaintiff  in  error,)  was  appointed  one  of  his 
executors ;  that  said  will  has  been  duly  proven,  and  recorded  in 
the  state  of  Virginia,  and  said  Garland  alone  has  in  said  state, 
qualified  as  executor  of  the  will ;  that  said  Rowan  owned  consid- 
erable real  and  personal  estate,  at  the  time  of  his  death,  in  the 
states  of  Virginia  and  Mississippi.  The  personal  estate  consist- 
ing of  slaves,  &c.;  that  Mrs.  Rowan  had  renounced  the  provision 
made  for  her  by  the  will  of  her  husband,  and  he  having  left  no 
child  or  children,  claimed  as  her  share  of  her  husband's  estate,  in 
the  state  of  Mississippi,  one  half  the  personal  property,  including 
the  slaves,  as  hers  absolutely.  The  executor  contended  that  her 
distributive  share  of  the  personal  estate  was  governed  by  the  laws 
of  Virginia,  the  husband's  domicil  and  place  of  residence  at  the 
time  of  his  death.  Mrs.  Rowan  filed  her  petition  in  the  probate 
court  of  Washington  county,  to  recover  her  share  of  the  personal 


♦Whether  the  same  rule  would  apply  if  the  domicil  was  in  a  State,  where  slav- 
ery is  not  permitted  by  law — query?    2  Sm.  &  M.  fil5. 


406  DOWER.  [oh.  lviii, 

estate.  The  executor  appeared  and  answered,  setting  up  the  a- 
bove  defence. 

"  The  court  decided  that  the  laws  of  Virginia  did  not  fix  the 
right  of  the  widow,  or  affect  it.  And  although  it  was  agreed  that 
by  the  laws  of  Virginia,  she  was  entitled  to  only  one  third  of  the 
slaves  during  her  life,  the  judge  decreed  to  her  one  half  of  the 
slaves  that  were  in  the  state  of  Mississippi,  at  the  time  of  her  hus- 
band's death,  absolutely ;  and  decreed  also  that  she  was  entitled 
to  one  half  of  the  personal  property,  including  the  slaves,  regard- 
less of  the  debts  that  were  owing  by  the  testator  in  Mississippi, 
inasmuch  as  it  was  made  to  appear  to  him,  that  after  allotting  to 
the  widow  one  half  the  personal  estate,  there  would  still  be  left 
more  than  enough  to  pay  all  those  debts.  From  the  decree  of  the 
probate  court  the  executor  appealed  to  this  court,  and  assigns  for 
error,  the  decree  of  the  court  below,  in  allotting  dower  according 
to  the  law  of  Mississippi,  instead  of  that  of  Virginia." 

"As  to  the  real  estate,  there  is  no  diversity  of  opinion ;  it  is  uni- 
versally conceded,  that  such  estate  is  governed,  in  its  transmission 
and  descent,  by  the  laws  of  the  country  in  which  it  is  situated. 
In  relation  to  the  distribution  of  personalty,  the  law,  though  for- 
merly the  subject  of  much  controversy,  appears  to  be  well  settled, 
that  the  law  of  the  domicil  of  the  decedent  is  in  general  to  give 
the  rule.  It  is  not  universal  in  its  application,  nor  without  some 
exception,  yet  as  a  general  rule  it  has  been  established  with  great 
unanimity." 

"  No  authority  is  cited  in  support  of  the  attempted  distinction 
between  a  claim  on  a  share  of  the  personal  estate  made  by  the 
wife,  or  by  a  distributee.  We  have  not  been  able  to  find  any,  un- 
less it  be  the  case  in  Walker,  which  will  presently  be  adverted  to. 
The  various  statutes  of  distribution  seem  to  place  the  rights  of  the 
two  classes  on  the  same  footing,  and  the  elementary  writers  re^ 
gard  them  in  the  same  light,  so  far  as  the  nature  and  character  of 
their  respective  interests  are  concerned.  The  extent  of  the  inter- 
est is  another  matter.  Toller,  370.  2Lomaxon  Exec.201.  We 
find  one  case,  in  a  court  of  high  character  for  learning  and  abil- 
ity, in  which  the  law  of  the  domicil  was  applied  to  the  share  of 
a  widow  in  the  personaJ  estate  of  her  husband.    Smith  v.  Monroe, 


CH.  LVIII.]  DOWER.  40T 

1  Iredell,  346.  This  too  was  a  case  in  which  slaves  formed  a 
a  part  of  the  estate,  and  the  law  of  Mississippi,  in  which  state 
the  husband  had  his  residence,  governed  the  disposition. 

"  The  case  of  Stegall  v.  Stegall,  2  Brock.  256,  places  the  right 
of  the  wife  to  a  distributive  share  of  the  personalty,  on  a  ground 
totally  distinct  from  dower,  holding  that  by  adultery  and  elope- 
ment, her  right  to  dower  is  forfeited,  but  that  her  right  to  a  dis- 
tributive share  is  not  thereby  affected.  We  see  no  reason  to  draw 
a  line  between  the  widow  and  the  distributee,  in  this  respect,  and 
we  cannot  lend  it  our  sanction. 

•  "  Neither  do  we  find  any  authority  which,  in  states  where  slaves 
are  deemed  and  treated  as  personalty,  justifies  the  attempted  dis- 
tinction as  to  them.  Wheeler's  Law  of  Slavery,  184.  We  find 
various  cases  in  which  they  have  been  subjected  to  the  rule,  in 
North  and  South  Carolina,  and  in  Kentucky.  1  Iredell,  346. 
Latimer  v.  Elgin,  4  By.  26.  Sneed  v.  Ewing,  5  J.J.Marshall,  460, 
a  very  elaborate  case.  We  shall  not  lead  the  way  in  the  intro- 
duction of  an  exception  in  this  particular. 

"  We  come  next  to  the  consideration  of  the  case  in  Walker's 
reports.  If  taken  in  the  broad  sense  in  which  it  is  pressed  upon 
us,  by  the  counsel  for  the  appellee.  It  stands  alone  in  its  exposi- 
tion of  the  law  upon  this  subject  among  the  modern  authorities, 
unsustained  by  any  other  court.  We  are  fully  sensible  that  the 
stability  of  jurisprudence  requires  an  adherance  to  the  decisions 
of  our  courts.  If  solemn  judgments,  once  made,  are  lightly  de- 
parted from,  it  shakes  the  public  confidence  in  the  law,  and 
throws  doubt  and  distrust  upon  its  administration.  Yet  even  this 
backwardness  to  interfere  with  previous  adjudications,  does  not 
require  us  to  shut  our  eyes  upon  all  the  improvements  in  the  sci- 
ence of  law,  or  require  us  to  be  stationary  when  all  around  us  is 
in  progression. 

"  When  a  single  case  stands  unsupported,  and  rests  upon  an  un- 
sound basis  or  an  erroneous  application  of  principles,  it  is  better, 
in  the  language  of  an  eminent  judge,  "to  abandon  it,  than  to  at- 
tempt to  build  upon  it."  The  court  has  heretofore  felt  constrain- 
ed to  depart  from  former  decisions  of  its  predecessors.  Perhaps 
no  general  rule  can  be  laid  down  on  the  subject.  The  circum- 
stances of  each  particular  case,  the  extent  of  influence  upon  con- 


409  DOWER.  [CH.  LVIII. 

tracts  and  interests  which  the  decision  may  have  had,  whether  it 
be  only  doubtful  or  clearly  against  principle,  whether  sustained 
by  some  authority,  or  opposed  by  all ;  these  are  all  matters  to  be 
judged  of,  whenever  the  court  is  called  on  to  depart  from  a  prior 
determination.  When  all  this  has  been  done,  if  no  particular 
mischief  is  likely  to  ensue,  we  believe  it  to  be  our  duty  to  decide 
according  to  our  own  convictions  of  the  law." 

"  Questions  upon  the  conflict  of  laws,  were  but  a  few  years  ago, 
comparatively  little  understood.  Cases  seldom  arose,  and  when 
they  did,  they  were  not  examined  with  the  benefit  of  those  lights, 
which  the  researches  and  labors  of  modern  jurists  have  thrown 
upon  them.  The  first  work  on  this  subject  in  the  English  lan- 
guage, ,was  written  since  this  case  in  Walker  was  decided.  Of 
late  years,  from  the  enlarged  and  easy  intercourse  among  the  com- 
munities which  constitute  the  great  family  of  civilized  nations, 
they  have  greatly  increased.  But  nowhere  has  this  increase  been 
greater  than  in  the  United  States,  because  of  the  nature  of  our 
confederacy,  the  enterprising  character  of  our  citizens,  and  the 
general  diffusion  of  wealth  through  the  community.  A  fine  wri- 
ter has  said,  "that  the  attention  of  our  courts  should  now  often  be 
drawn  to  cases  of  this  character,  results  from  the  political  confed- 
eracy of  the  states,  which  while  it  supports  among  them  close  and 
extensive  connections  in  business  and  policy,  yet  holds  them  suf- 
ficiently distinct  and  independent  to  call  into  continual  exercise 
that  rule  which  expounds  and  gives  effect  to  contracts  and  other 
transactions,  according  to  the  state  law,  under  which  they  are 
made  to  take  place,  but  stops  there  and  carefully  distinguishes 
between  construction  and  right  on  the  one  hand,  and  remedy  on 
the  other."  4  Cowen.  510,  n.  It  is  not  strange  that  the  frequent 
discussions  of  this  point,  of  late,  should  have  rendered  the  doc- 
trine more  familiar  than  it  was  at  the  time  that  decision  was  made, 
or  that  the  court  should  have  mistaken  a  rule,  then  but  rarely  call- 
ed into  exercise,  and  having  but  little  reference  to  the  ordinary 
transactions  of  business. 

"  We  have  seen  with  what  general  assent  the  rule  has  been  a- 
dopted ;  it  may  not  be  out  of  place  to  give  some  examples  of  the 
estimate  placed  upon  a  refusal  to  adopt  it.  Lord  Loughborough 
said,  "it  is  a  clear  proposition,  not  only  of  the  law  of  England, 


CH.  LVIII.]  DOWER.  409 

but  of  every  country  in  the  world,  where  law  has  the  semblance 
of  science,  that  personal  property  is  subject  to  the  law  which  gov- 
erns the  person  of  the  owner,  both  with  respect  to  the  disposition 
of  it,  and  its  transmission  either  by  succession  or  by  the  act  of  the 
party."    Sill  v.  Worswich,  1  H.  Blk.  690.    The  supreme  court  of 
North-Carolina,  in  a  recent  case  said,  "no  country  having  a  just 
regard  for  its  own  character,  or  the  comity  due  to  other  countries, 
can  refuse  its  authority  to  collect  and  apply  the  goods  within  her 
jurisdiction  in  the  proper  course  of  administration."  1  Iredell,  346. 
The  law  of  the  domicil  was  declared  to  give  the  rule,  and  in  the 
case  of  a  widow  whose  husband's  domicil  was  Mississippi,  and 
whose  claim  was  for  her  share  of  her  late  husband's  slaves.    The 
supreme  court  of  Tennessee,  in  overruling  one  of  their  own  de- 
cisions upon  a  kindred  subject,  lately  said,  "  but  to  this  decision 
we  cannot  assent.      The  contrary  doctrine  is  supported  by  a 
weight  of  authority  altogether  overwhelming,  and  it  is  based 
upon  grounds  of  just  reason  and  international  convenience,  to 
disregard  which,  would  almost  place  a  state  without  the  pale 
of  civilized  communities."    Alsop  v.  Alsop,  10  Yerger,  286. — 
This  doctrine  commends  itself  to  our  sanction  so  forcibly  that 
we  cannot  resist  it,  and  we  must  of  necessity,  give  up  the  case 
in  Walker,  if  it  is  to  be  understood  in  the  latitude  contended 
for.    But  in  one  point  of  view  the  case  is  supported  by  other 
authorities,  and  limited  to  that  extent,  and  to  the  actual  state 
of  facts  then  before  the   court,   we  have  on  this  occasion  no 
necessity  to  speak  of  it.     The  parties  in  that  case  resided  in 
Louisiana,  and  in  that  state  slaves  are  regarded  as  realty,  or 
as  immovable  property.    The  counsel  for  the  party  who  pre- 
vailed in  that  cause,  rested  his  argument  in  a  great  degree  up- 
on the  want  of  reciprocity  in  the  rule  between  the  two  states, 
where  one  regarded  slaves  as  immovable,  and  the  other  as  mova- 
ble property.    Under  the  law  of  either  state,  if  the  law  of  the 
domicil  gave  the  rule,  the  citizens  of  Louisiana  were  to  be  the 
gainers.    Mutual  courtesy  and  international  comity  lay  at  the 
foundation  of  the  rule.    This  principle  is  often  acted  on  in  the 
intercdtirse  of  nations,  and  may  be  more  than  just.    Story  Con. 
357.    But  with  this  limitation  the  rule  does  not  avail  the  appel- 
52 


410  DOWER.  [CH.  LVIII. 

lee  in  this  case,  because  in  the  state  of  her  domicil,  slaves  are 
deemed  to  be  personalty. 

"  In  the  same  argument  the  distinction  is  drawn  between  the 
right  of  dower  and  the  right  of  distribution,  but  the  cases  cited 
arose  under  the  custom  of  London.  That  custom  adheres  to  the 
persons  of  its  freemen,  into  whatever  part  of  the  kingdom  they  go, 
and  it  furnishes  no  rule  for  the  construction  of  the  statute  of  distri- 
butions, because  it  is  excepted  from  the  operation  of  the  English 
statute.    See  Pipon  v.  Pipon,  Ambler,  25. 

"  The  decision  in  Walker  carries  the  rule  beyond  the  point  of 
reciprocity.  It  rests  upon  a  distinction  drawn  between  the  claim 
of  the  widow  on  the  personalty,  and  the  claim  of  the  distributee. 
We  have  already  stated  that  we  could  find  no  authority  for  this 
distinction  in  the  general  common  or  statute  law,  as  contradistin- 
guished from  the  civil  law,  and  the  custom  of  London.  The  stat- 
utes of  distribution,  ours  among  the  number,  treat  her  claim  as  a 
claim  to  distribution,  and  it  is  so  treated  by  the  writers  on  this 
branch  of  the  law.  2  Lomax  on  Ex.  20L  The  only  point  of  dif- 
ference in  the  succession  to  personalty  is,  that  the  wife  cannot  be 
excluded  by  the  will  of  her  husband  from  all  share  in  it.  But 
this  is  not  a  question  of  exclusion,  it  is  only  a  question  as  to  the 
law  by  which  the  succession  is  to  be  regulated." 

"  It  is  insisted  in  the  argument  that  if  the  rule  is  applied  to 
slaves,  in  this  country  much  mischief  may  result  from  it.  That 
if  a  person  having  his  domicil  in  a  non-slaveholding  state,  and 
owning  slaves  here,  should  die,  the  slaves  would  have  to  be  e- 
mancipated  despite  our  own  laws.  We  do  not  think  this  conse- 
quence would  follow.  An  exception  to  the  general  rule,  as  firm- 
ly settled  as  the  rule  itself,  is  that  the  international  law,  or  law  of 
comity,  is  not  permitted  to  operate  within  a  state  to  the  prejudice 
of  the  government  in  opposition  to  its  settled  policy,  or  to  the  in- 
terest of  its  citizens.  Story,  30.  The  consequence  could  be  a- 
voided  too,  if  necessary,  by  limiting  the  rule  by  the  principle  of 
reciprocity,  and  by  giving  force  to  it,  as  to  this  species  of  proper- 
ty, only  in  reference  to  the  slave  states.  As  Virginia  is  one  of 
that  number,  the  question  in  this  respect,  cannot  arise  in  the  pre- 
sent case,  and  we  may  safely  leave  it  to  be  determined,  when  the 


CH.  LVIII.]  DOWER.  411 

exigency  shall  arise.  That  precise  question,  however,  has  been 
before  the  courts  of  Kentucky,  in  the  c^se  of  a  person  who  died 
in  Indiana.  The  court  gave  effect  to  the  laws  of  Indiana,  saying 
that  the  representative  might  sell  the  slaves,  and  distribute  the 
proceeds  according  to  the  laws  of  that  state.  Sneed  v.  Ewing, 
5  Marshall,  482." 

"Any  other  rule  than  this,  giving  effect  to  the  law  of  the  domi- 
cil,  would  sometimes  work  injustice,  and  prove  the  source  of  dif- 
ficulty in  its  practical  operation.  A  widow,  like  a  distributee,  is 
only  entitled  to  her  share  of  personalty,  after  the  payment  of  the 
debts.  In  this  case,  the  estate  is  found  in  four  different  states. 
It  would  not  be  easy  to  adjust  the  share  in  each  state,  after  the 
payment  of  debts,  for  in  some  of  the  states  the  debts  might  ex- 
ceed the  effects  therein.  The  administration  in  the  state  of  the 
domicil  is  regarded  as  the  principal  one,  in  the  others  only  as 
ancillary.  Before  distribution  can  be  rightfully  made,  all  the 
debts  everywhere  must  be  paid.  Creditors  in  each  state  have  a 
right  to  be  paid,  before  the  funds  are  withdrawn  therefrom,  and 
to  be  paid  according  to  the  priorities  and  preferences  existing  by 
the  laws  of  such  state,  so  far  as  the  assets  in  that  state  go.  See 
Hanry  v.  Richards,  1  Mason,  381.  Davis  v.  Head,  3  Pick.  128. 
5  Peters,  518.  Now  suppose  we  give  effect  in  favor  of  the  wid- 
ow, to  the  laws  of  this  state.  Suppose  farther,  that  the  debts  in 
Kentucky  largely  exceed  the  effects  there,  and  that  the  unpaid 
Kentucky  creditors  sue  the  executor  in  Virginia,  and  throw  the 
burden  upon  the  estate  there,  then  manifestly  the  widow  is  ben- 
efited at  the  expense  of  the  other  distributees,  who  have  obtain- 
ed no  preferences  here.  She  would  get  a  share  not  reduced  by 
the  payment  of  any  debts  out  of  this  state.  We  might  go  far- 
ther, and  suppose  the  Virginia  estate  to  be  exhausted  by  the  pay- 
ment of  the  debts,  and  the  injustice  would  then  become  more 
glaring. 

"  We  think,  therefore,  the  rule  adopting  the  law  of  the  domicil 
as  the  right  one  to  govern  distribution,  to  be  more  just  and  equit- 
able. By  that  rule,  after  the  payment  of  all  the  debts,  wherever 
found,  the  surplus  of  the  whole  personalty,  wherever  existing,  is 
subjected  to  one  uniform  law,  and  all  claimants  by  succession  sat- 
isfied according  to  that  law.     This  brings  about  equality,  which. 


412  DOWER.  [CH.  LVIII. 

in  the  absence  of  prior  rights  is  equity.  There  is  one  harmoni- 
ous and  consistent  rule,  instead  of  rules  as  numerous  as  the  states, 
in  which  the  property  is  found."    2  Sm.  &  M.  617-636. 

§  62.  By  act  of  Mississippi,  1839,  it  is  made  the  duty  of  the 
Judge  of  Probate,  in  this  State,  "  upon  the  application  of  the 
widow  of  any  deceased  person,  to  appoint  three  commissioners! 
whose  duty  it  shall  be  to  select  and  set  apart,  out  of  the  stock  of 
provisions  or  effects  of  the  said  deceased  person,  one  year's  provi- 
sion for  the  widow  and  children."     How.  &  H.  421. 

By  same  act,  it  is  provided,  that  "  all  property,  now  exempt 
from  execution,  under  the  provisions  of  the  existing  laws  of  this 
State,  shall,  upon  the  death  of  any  person  possessed  of  the  same, 
descend  to  the  widow  of  the  deceased,  and  be  exempt  in  the  same 
manner  as  in  the  deceased  before  his  death."*     Ibid. 

DOWER GENERALLY. 

§  63.  When  the  husband  makes  a  gift  to  his  wife,  of  articles  to 
be  worn  as  ornaments  of  her  person  only,  such  articles  are  to  be 
considered  her  paraphernalia  only ;  and  from  the  nature  of  the 
donation,  the  wife  cannot  dispose  of  the  specific  things  given. 
They  are  liable  to  the  debts,  engagements,  and  alienation  of  the 
husband  during  his  life,  but  not  subject  to  his  disposition  by  will. 
2Atk.  78;  3  ib.  358. 

Equity  so  protects  wife's  interest,  that  if  husband  die  indebted, 
and  her  paraphernalia  are  taken  by  specialty  creditors,  after  ex- 
haustion of  all  the  personal  estate,  she  may  take  the  place  of  such 
creditors  and  reimburse  herself  out  of  the  real  assets  in  the  pos- 
session of  the  heir,  to  the  amount  of  her  paraphernalia  so  sub- 
jected.   3  Atk.  369, 

And  she  is  entitled  to  have  incumbrance,  created  by  her  hus- 
band on  her  paraphernalia,  discharged  out  of  his  general  person- 
al estate,  to  the  prejudice  of  legatees.    For  her  right  is  anterior 


*By  act  of  1824,  it  was  enacted,  that  "on  all  estates,  the  widow  shall  be  al- 
lowed one  hone,  not  exceeding  in  value  $100 — one  cow  and  calf,  one  bed,  bed- 
stead and  bedding;  provisions  for  the  support  of  herself  and  the  children  for  one 
year;  and  such  other  household  furniture  as  she  may  think  proper  to  select,  not 
exceeding  in  value  $50 — all  of  which  she  shall  reserve  out  of  her  husband's  es 
tate,  exempt  from  all  claims,  debts,  and  demands  whatsoever."  And  by  same 
act — "this  provision  shall  not  interfere  with  her  dower  in  real  or  personal  estate.'* 
How.  &  H.  416.    See  North  on  Probates,  note  to  page  246. 


CH.  LVIII.]  DOWER.  418 

to,  and  to  be  preferred  to  theirs,  which  are  merely  voluntary.    1 
P.  Wms.  730;  3  Atk.  370,  375;  Roper  on  B.  &  F.  188. 

§  64.  Where  an  executor  having  power  by  the  will  to  sell  the 
real  and  personal  estate,  sold  the  realty,  and  the  widow  united 
in  the  deed  for  a  nominal  consideration,  without  intending  to  give 
up  her  right  to  an  equivalent  out  of  the  purchase  money,  for  her 
dower  in  the  realty  so  sold ;  and  the  widow  applied  by  petition 
to  the  Probate  court  for  her  one-third  of  the  proceeds  of  the  sale, 
and  the  Probate  court  dismissed  the  petition  for  want  of  jurisdic- 
tion— Held,  that  if  by  the  terms  of  the  will,  and  the  action  under 
it,  the  real  estate  was  reduced  to  personalty,  the  court  had  juris- 
diction, and  should  entertain  the  petition.    4  Sm.&M.  273. 

If  the  widow  voluntarily  and  without  fraud,  but  for  a  nominal 
consideration  alien  her  right  of  dower  in  realty,  it  seems  the  Pro- 
bate court  will  have  no  jurisdiction  of  a  petition  of  the  widow  for 
compensation  out  of  the  personalty  of  her  husband.  She  must ' 
rely  for  compensation,  on  her  contract,  express  or  implied,  un- 
der which  she  parted  from  her  dower ;  and  must  seek  her  relief 
in  a  court  having  jurisdiction  of  contracts.     Ibid* 

§  65.  The  widow  is  entitled  to  only  one-third  of  such  personal 
estate  as  is  left  by  her  husband  at  his  decease,  undisposed  of  by 
advancement  or  otherwise.     1  Pick.  157.1 


*Where  a  widow  filed  her  bill  charging  her  deceased  husband  with  selling  and 
conveying  his  land  fraudulently  with  intent  to  defraud  her  of  her  dower,  and  pray- 
ing dower  and  damages  for  the  detention  thereof,  and  the  Chancellor  submitted 
both  the  validity  of  the  deed  and  quantum  of  damages  to  the  jury — Held:  the  jury 
could  not  properly  decide  the  question  of  damages,  but  only  that  of  validity.  1 
Humphreys,  1.  The  finding  of  the  jury  does  not  preclurle  the  court  from  after- 
wards fixing  the  true  amount  of  damages.   Ibid. — But  see  2  Murph.  79,  contra. 

t  Lands  purchased  by  partners  under  an  agreement  that  they  shall  be  sold  for 
the  benefit  of  the  partnership,  will  be  regarded  as  joint  stock;  and  will  be  like- 
wise so  considerea,  though  there  be  no  agreement,  if  there  be  such  an  application 
of  them  to  the  purposes  of  the  concern,  as  evidences  an  original  understanding 
of  the  parties  that  the  lands  are  to  be  treated  as  such,  and  not  as  estates  in  com- 
mon. But  where  there  is  no  such  agreement,  nor  such  an  application  of  the  lands 
as  evinces  the  original  understanding  to  have  been,  that  they  were  considered  joint 
stock,  the  wife  of  a  deceased  partner  is  entitled  to  a  dower  in  such  lands.  3  How. 
360. 

Where  two  persons  formed  a  commercial  co-partnership  for  the  purpose  of  car- 
rying on  business,  but  afterwards  by  mutual  consent,  extended  their  business  to 
the  buying  and  selling  of  lands  and  town  lots,  conveying  not  in  the  partnership 
style,  but  in  their  individual  names  as  tenants  in  common — Held:  the  lands  and 


41i  DOWER.  [dH.  LVIII. 

The  rents  and  profits  of  real  estate,  received  by  the  executor 
or  administrator,  constitute  no  part  of  the  personal  estate  of  the 
deceased,  and  therefore  the  widow  is  not  entitled  to  a  distributive 
share  thereof.     Ibid. 

And  where  A.  being  seized  of  lands  in  fee,  devised  a  certain 
interest  therein  to  his  widow,  and  the  rest  of  his  real  estate  to  B. 
— and  at  the  death  of  A.  crops  were  growing  on  the  lands  devis- 
ed to  B.,  and  by  him  were  gathered — and  the  widow  dissented 
from  the  will,  and  filed  her  bill  in  equity  against  B.,  for  her  dow- 
er from  the  death  of  the  devisor — it  being  ascertained  that  the 
provision  made  for  the  widow  was  not  equal  to  her  dower — her 
dower  was  allotted  to  her.  But  the  court  refused  to  call  B.  the 
devisee,  to  account  for  the  profits — because  if  the  husband  had 
died  intestate,  the  crop  would  have  gone  as  assets  to  the  adminis- 
trator, of  which  she  could  have  claimed  only  a  distributive  share. 
2  Murph.  175.     . 

§  66.  If  a  widow  commit  waste  in  the  lands  of  the  deceased, 
she  shall  be  liable  to  an  action  by  the  heir  or  devisee,  or  his  or 
her  guardian ;  and  if  she  marry  a  second  husband,  he  shall  be 
answerable  for  any  waste  committed  by  her  before  marriage,  or  by 
himself  afterwards.     Acts  1821 — How.  &  H.  351. 

In  cases,  where  any  slave  or  slaves  have  been  or  shall  be  de- 
vised to  any  widow  for  life,  in  lieu  of  her  dower,  or  have  been  or 
shall  be  held  by  any  person,  for  his,  or  her  life  only,  or  the  life 
of  any  other  person  or  persons,  every  such  person  entitled  to  such 
life  estate,  or  his  or  her  guardian,  if  he  or  she  be  an  infant,  shall 


lots  so  conveyed  by  the  members  of  the  firm,  were  subject  to  the  dower  of  the 
widow  of  one  of  the  deceased  partners.     7  How.  437. 

When  a  marriage  contract  does  not  amount  to  more  than  a  reservation  to  dispose 
of  the  individual  property,  at  death,  and  no  disposition  is  made  by  the  parties,  the 
property  is  subject  to  the  course  prescribed  by  law.  Nor  is  such  a  contract  a  joint- 
ure which  will  bar  the  wife's  claim  to  dower.     2  How.  692. 

An  infant  feme  covert,  is  not  estopped  by  a  relinquishment  of  dower  made  dur- 
ing coverture.  7  How.  437.  If  a  feme  covert  relinquish  dower  during  her  infan- 
cy, she  will  not  be  compelled  to  refund  any  portion  of  the  purchase  money  re- 
ceived by  her  husband,  if  she  afterwards  claim  dower.    Ibid. 

The  widow  cannot  renounce  her  rights  under  a  will  given  in  lieu  of  dower,  and 
insist  upon  dower  after  the  expiration  of  six  months  from  the  time  of  the  probate 
of  the  will.    lb.  665. 

Where  an  order  for  publication  was  made  by  the  Probate  court,  on  the  filing  of 
a  petition  for  dower,  it  will  be  presumed,  in  the  absence  of  any  evidence  to  the 
contrary,  that  the  publication  was  made.     3  How.  205. 


CH.  LIX.]  DESCENT.  415 

within  sixty  days  after  coming  to  the  possession  of  such  slave  or 
slaves,  cause  to  be  lodged  with  the  clerk  of  the  Probate  court  of 
the  county  wherein  he  or  she  resides,  a  list  containing  the  names 
of  all  such  slaves,  describing  their  ages  and  sexes,  under  the  pen- 
alty of  fifty  dollars  for  each  slave. 

Such  clerk  shall  record  said  list  in  a  well  bound  book,  to  be 
kept  for  such  purpose,  for  which  he  shall  receive  from  the  person 
furnishing  any  such  list  a  fee  of  one  dollar.  The  increase  of  all 
such  slaves  shall,  within  the  like  times,  from  their  births,  in  like 
manner,  be  registered  with  the  said  clerk,  under  the  like  penalty, 
and  for  a  further  fee,  in  each  case,  of  twenty-five  cents. 

In  case  of  the  inter-marriage  of  any  such  widow,  her  husband 
shall,  from  that  time,  perform  all  the  duties  required  by  this  sec- 
tion, under  the  like  penalties. 

And  all  the  penalties  hereby  incurred  shall  go  and  accrue  to 
any  party  aggrieved,  to  be  recovered  with  costs,*  by  action  of  debt, 
in  any  court  having  competent  jurisdiction.  Acts  1821 — How. 
&H.402. 


CHAPTER  LIX. 


D  E  S  C  E  N  T WHAT  i 


§  1.  Descent,  (or,  as  termed  by  old  law  writers,  Discent,)  is 
that  title  by  which  a  man,  on  the  death  of  his  ancestor,  obtams 
the  freehold  of  such  ancestor,  by  right,  or  representation,  as  his 
heir-at-law. 

An  hdr,  therefore,  is  he  upon  whom,  the  law  casts  the  estate, 
immediately,  on  the  death  of  his  ancestor.* 

♦Descent  implioa  derivation  from  and  not  through  a  parent.  3  Mason's  C.  C 
Rep.  399;  2  Peters,  58. 


416  DESCENT.  [CH.  LIX. 

§  2.  It  must  also  be  observed,  that  such  descent  can  only  take 
eflfect  as  to  land  of  which  the  ancestor  died  intestate — (unless,  in- 
deed, the  ancestor  devise  just  such  an  estate  as  the  heir  would 
have  taken,  without  any  will,  in  which  case  the  law  will,  (in  fa- 
vor of  creditors,)  consider  the  heir  as  taking  by  descent)  For,  as 
regards  lands  devised,  the  devisee  will  not  take  by  descent,  but  by 
purchase,  which  diifers  from  descent,  in  this — that  purchase  a- 
rises  out  of  the  agreement,  or  other  act  of  the  party,  and  not  by 
mere  operation  of  law.    (See  on  this  point,  1  Har.  &  John.  478.) 

The  importance  of  preserving  this  distinction  consists  in  this, 
— ^that  whoever  claims  by  descent  must  be  of  the  blood  of  the 
first  purchaser,  and  also  heir  of  him  who  was  last  seized;  but  an 
estate  acquired  by  purchase  is  descendible  to  the  owner's  heirs 
generally,  and  not  only  to  the  blood  of  the  particular  ancestor  from 
whom  such  owner  derived  it. 

In  the  former  case,  the  claimant  must  trace  back  his  descent  to 
the  same  ancestor  with  the  person  last  seized.* 

But  in  the  latter  case,  it  is  only  necessary  that  the  claimant 
should  be  the  next  of  kin  to  the  deceased  owner,  anr?  capable  of 
inheriting.    For,  seizinafacit  stipitem.] 

§  3.  The  seizin,  above  mentioned,  must  have  been  an  actual 
seizin,  either  by  t.  c  ancester's  own  entry,  or  the  possession  of  his 
lessee,  or  of  the  lessee  of  his  ancestor,  or  by  receiving  rent  of  the 
freehold,  or  (in  case  of  incorporeal  hereditaments,)  by  what  is,  in 
such  case,  equivalent  to  corporeal  seizin,  receipt  of  rent  and  the 
like.t 


*By  Stat.  3  and  4  William  IV.  ch.  106,  it  is  provided  that  the  claimant  by  de- 
scent must  be  the  "heir  to  the  last  person  entitled  who  did  not  inherit,"  instead 
of  the  person  "last  possessed."  This  statute  has  abolished  the  feudal  maxim  of 
"teisinafacU  stipitem.''^ 

t  Descent  is  suspended  during  estate  of  dower  or  curtesy,  and  the  heir  is  not 
seized  so  as  to  form  a  new  stock  or  "po«esjto/ra<m."  3  John.  Cas.  214.  The 
reason  is,  that  the  widow's  entry  is  a  continuance  of  her  husband's  estate  with- 
out interruption.    Co.  Litt.  15,  a.     See  also  13  John.  260. 

:j:Where  lands  are  located  and  surveyed  by  the  ancestor,  and  patented  to  the 
heirs,  the  heirs  take  by  descent  and  not  by  purchase.     1  Ham.  395. 

The  interest  under  a  lease  of  ninety-nine  years  is  not  descendible.  7  ib.  part 
Ist,  119,124.  So,  settlement  claims  in  Pennsylvania.  3  Yeates,  571;  and  1 
Dana,  211. 

Where  a  testator  gave  real  and  personal  estate  on  condition,  and  the  residue  of 
his  estate  real  and  personal  to  his  wife — the  conditional  legatees  and  devisees 


CH.  LIX.]  DESCENT.  ^1(% 

« 

A  bare  right  of  entry  is  not  sufficient  to  constitute  such  seizin, 
And  the  reason  of  this  rule  is,  the  law  requires  notoriety  of 

possession,  as  evidence  that  the  ancestor  had  the  property  in 

himself. 
§  4.  Of  the  canons  of  descent,  which  existed  at  common  law 

in  England,  and  which  once  obtained  in  the  American  colonies, 

but  few  remain  in  force  within  the  United  States ;  most  of  thenj 

having  originated  in  reasons  of  feudal  policy,  incompatible  with 

the  principles  of  a  Republican  government.  ,  •; 

Those  which  have  been  abolished  are — 

1st.  Inheritance  shall  lineally  descend  and  not  ascend.  (This 
rule  is  also  altered  in  England,  by  statute  of  Wm.  IV.  1834.) 

2d.  The  male  issue  shall  inherit  before  the  female  issue,  the  for- 
mer being  esteemed  the  most  worthy. 

3d.  Where  there  are  two  or  more  males  in  equal  degree,  the  eld- 
est only  shall  inherit — (but  the  females  all  together.) 

4th.  The  collateral  heir  of  the  person  last  seized,  must  be  his 
next  collateral  kinsman  of  the  ichole  blood.*  (Altered  by  stat- 
ute of  Wm.  IV.  so  that  half  blood  may  inherit  in  England.) 

4th.  In  collateral  inheritances,  the  male  stock  shall  be  preferred 
to  the  female,  unless  the  lands  had  descended /row  a  female. 

DESCENT— -REPRESENTATION. 

§  5.  The  4th  &  5th  canons  of  descent  have,  with  various  mod- 
ifications, been  preserved  in  the  United  States — namely : 

Grnion  the  4th. — The  lineal  descendants,  ad  infinitum,  of  any 
person  deceased,  shall  represent  their  ancestor. 

This  taking  by  representation  is  called  succession  in  stirpes^ 
according  to  the  roots ;  since  all  the  descendants  (or  branches,) 
inherit  the  same  share,  that  their  root,  or  ancestor  would  have 
had.  -  , 


came  into  possession  of  the  property,  but  forfeited  the  same  by  non-performance 
of  the  condition,  though  not  till  after  the  death  of  the  residuary  legatee — Held: 
on  the  death  of  the  testator,  a  contingent  intfeftst  in  the  estate,  real  and  personal, 
vested  in  the  residuary  legatee,  which  was  transmissible  to  her  heirs  and  personal 
jrepresentatives  veapectively.     10  Pick.  463.    See  post.  sec.  8,  note. 

•In  Mississippi,  the  distinction  between  half  and  whole  blood  is  so  farabulish« 
ed,  that  its  only  remnant  is — "the  kindred  of  the  tehole  blood,  in  eqtuU  degrees,  is 
preferred  to  the  kindred  of  the  fialf  blood,  in  the  same  degree."  How,  &  H.  ch. 
36,  sec.  31,  p.  394.  ,  ,   »<>»<> 

53 


4tS 


DESCENT. 


[CH.  LIX. 


This  rule,  although  many  of  the  reasons  in  which  it  was  found- 
ed in  England,  no  longer  operate  here,  has  been  to  a  certain  ex- 
tent, on  account  of  its  natural  justice,  adopted  in  all  the  States  of 
the  Union. 

In  Mississippi,  the  statute  regulating  descents,  provides,  that 
"in  case  of  intestacy,  and  descent  of  lands,  the  descendants  of  the 
deceased  child  or  grand-child,  shall  take  the  share  of  the  deceas- 
ed parent,  in  equal  parts  among  them."  How.  &  H.  ch.  36,  sec. 
31,  p.  393. 

But  by  the  same  statute,  it  is  provided,  that  "there  shall  be  no 
representation  among  collaterals,  except  with  the  descendants  of 
the  brother  and  sister  of  the  intestate."*      Ibid. 

The  following  scheme  will  illustrate  this  rule : — 


The  person  dying  seized. 


♦Where  testator  devised  all  his  estate  to  his  wife  during  widowhood,  without 
disposing  of  the  remainder,  and  died  leaving  several  children,  and,  after  the  death 
of  the  testator  and  before  the  termination  of  the  wife's  estate,  one  of  the  sons 
died  insolvent,  leaving  one  son  his  sole  heir — Held:  the  reversion  was  charge- 
able with  the  debts  of  the  deceased  son,  under  the  statutes  of  this  commonweiilth 
(Massachusetts,)  altho',  at  common  law,  the  estate  would  descend  to  the  grand- 
child, as  heir  of  the  grand-father,  and  would  not  be  assets  for  the  payment  of  the 
debts  of  the  mesne  reversioner. — 14  Mass.  88. 


CH.  LIX.J  DESCENT.  411) 

The  figure  [1]  represents  the  ancestor  last  seized,  and  dying 
intestate.  Suppose  that  before  the  death  of  such  ancestor,  John 
had  died  leaving  four  descendants,  and  Mary,  and  William,  and 
Robert,  his  surviving  brothers  and  sister.  In  that  case,  the  four 
children  of  John  would  take  only  one-fourth,  that  being  the  share 
which  their  deceased  parent  (or  stirps-root,)  would  have  taken, 
had  he  lived. 

So,  if  one  of  the  children  of  John  had  died  before  the  death  of 
his  grand-parent,  leaving  two  children,  these  last  would  have  been 
entitled  each  only  to  one-eighth  of  the  estate,  that  being  the  share 
which  John's  deceased  son,  whom  they  represent,  would  have . 
taken  had  he  survived  his  grand-parent.  And  so  on,  od  infird' 
turn,  to  the  latest  descendants  of  the  person  dying  seized. 

In  like  manner,  if  all  the  lineal  descendants  of  the  grand-pa- 
rent had  died  before  him,  and  either  of  his  brothers  had  died  be- 
fore the  descent  was  cast,  the  descendants  of  such  deceased  broth- 
er would  have  taken  their  deceased  parent's  share.* 

DESCENT COLLATERAL. 

§  6.  Canon  5th. — On  failure  of  lineal  descendants,  or  issue  of 
the  person  last  seized,  the  inheritance  should  descend  to  his  col- 
lateral relations,  being  of  the  blood  of  the  first  purchaser,  subject 
to  the  three  preceding  rules.  (This  rule  is  now  altered  in  Eng- 
land by  statute,  so  that  the  lineal  descendants  of  the  purchaser  is 
preferred.) 

In  Mississippi,  this  rule  is  adopted  with  the  following  modifi- 
cations : 

1st.  The  distinction  between  the  whole  and  half  blood  is  abol- 
ished— (except,  where  they  are  in  the  same  degree,  in  which  case 
the  whole  blood  is  preferred.) 

2d.  No  difference  is  recognized  among  male  and  female  col- 
lateral relations. 


•Where  A.  died  Beized  of  lands,  leaving  two  children  of  a  deceased  sister,  and 
a  son  of  a  deceased  brother,  his  heirs  at  law,  such  heirs  must  (by  statute,)  take 
per  stirpes  and  not  per  capita.    6  John.  322.    See  also  5  Har.  &  John.  23. 

The  children  of  a  deceased  brother  shall  not  take,  in  exclusion  of  the  grand* 
children  whose  parent  deceased  before  the  intestate;  but  the  grand-children  shall 
take  the  share  of  the  parent  by  representation.     1  Pen.  7. 


43#  DESCENT.  [CH.  LIX. 

3d.  On  failure  of  lineal  descendants,  and  of  brother  and  sister, 
6r  their  descendants,  the  property  will  descend  to  the  father  if 
living,  and  if  not,  to  the  mother  of  the  intestate. 

4th.  If  there  be  no  lineal  descendants  of  intestate,  nor  brother, 
nor  sister,  nor  their  descendants,  nor  father,  nor  mother — then  the 
estate  of  the  intestate  shall  descend,  in  equal  parts,  computing  by 
the  rules  of  the  civil  law* 

Collateral  kindred  differs  from  lineal,  in  this — ^that  although 
they  descend  from  the  same  common  stock,  they  do  not  descend 
one  from  the  other. 

Collateral  kindred,  then,  are  such  as  spring  from  one  of  the 
same  ancestor,  who  is  the  root  or  common  stock  from  whence 
these  relations  are  branches — 2  Bl.  Comm.  204,  And  collateral 
consanguinity  consists  essentially  in  this  descent  from  a  common 
stock.    lb.  205;  Wms.  on  Exrs.  249. 

The  mode  of  computing  by  the  civil  law,  is  to  count  upwards 
from  either  of  the  parties  related  to  the  common  stock,  and  then 
downwards  again  to  the  other,  reckoning  a  degree  for  each  per- 
son, both  ascending  and  descending.  2  Bl.  Comm.  207.  In 
other  words,  to  take  the  sum  of  the  degrees  in  both  lines  to  the 
common  ancestor.     Ibid,  in  note.     Wms.  on  Exrs.  249. 

§  7.  In  a  case  reported  in  4  Pick.  93,  the  question  arose  whe- 
ther, under  a  statute  of  New- York  similar  to  the  statute  of  Mis- 
sissippi above  quoted,  the  common  law  rule  which  forbids  the 
mother  of  an  illegitimate  child  to  inherit  from  him,  had  been  a- 
brogated  by  the  adoption  of  the  civil  law  rule  of  computing  kin- 
dred, in  relation  to  descent.  The  court  in  that  case  said,  "  We 
are  not  able  to  adopt  the  opinion,  that  our  legislature,  in  using 
the  same  term  in  our  statute  of  descent  and  distribution,  intend- 
ed to  apply  the  term  to  those  who  by  common  law,  were  not 
deemed  children  in  a  relative  sense  to  parents.    But  we  should 


*Civil  law  means  that  which  the  old  Romans  used,  compiled  from  law  and  na- 
tions. It  is  founded — 1st.  Ou  the  regal  constitutions  of  ancient  kings — next  on 
the  twelve  laws  of  the  Decemviri — then,  on  the  laws  and  statutes  enacted  by  the 
senate  or  people,  the  edicts  of  the  Praetor  and  the  opinions  of  learned  lawyers — 
and  lastly t  on  the  imperial  decrees  or  constitutions  of  successive  Emperors.  Tom- 
lin's  Law  Diet.  Tit.  Civ.  Law. 

When  a  man  dies  without  a  will,  that  person  is  esteemed  his  nearest  of  kin^  who 
was  so  at  the  time  of  hia  decease.    Justinian,  Lib.  3,  Tit.  2,  sec.  6. 


CH.  LIX.]  DESCENT.  421 

think  if  snch  had  been  their  intention,  an  express  provision  would 
have  been  made  for  illegitimates."  And  again — "Our  statute  of 
distributions,  though  borrowed  from  the  civil  law,  cannot  be  con- 
strued to  have  repealed  the  common  law  in  this  respect.  It  mere- 
ly provides  for  the  distribution  of  property  according  to  the  rules 
of  that  law,  among  lawful  kindred,  without  adopting  its  principles 
in  settling  who  shall  compose  that  kindred."  This  case  reviews 
and  dissents  from  decisions  in  case  of  Heath  &  wife  vs.  White, 
reported  in  5  Count.  Rep.  228 — by  which  it  was  established  that 
the  civil  law  rule  did  control  the  common  law  rule  in  this  respect. 
See  also  2  Dana,  363 — which  decides  that  the  words  "  brothers 
and  sisters,"  mean  such  as  are  legitimate. 

In  Mississippi,  in  case  of  Doe  ex.  dem.  Hickey  vs.  Gilbert  & 
Deloach,  1  How.  32 — it  was  settled  that,  "  where  one  died  pos- 
sessed o^real  estate,  leaving  no  children,  nor  descendants  of  them, 
nor  father  or  mother,  the  estate  shall  go  to  the  brothers  and  sis- 
ters of  the  mother,  in  preference  to  the  son  of  the  brother  of  his 
grand-mother ; — because,  computing  according  to  the  rule  of  the 
civil  law,  the  former  are  in  the  third  degree,  and  the  latter  in  the 
fifth  degree.  The  statute  does  not  give  a  preference  to  the  rela- 
tions of  one  side  over  those  of  the  other,  nor  is  there  any  thing  in 
the  statute  to  authorise  the  opinion  that  the  more  remote  relations 
in  blood  of  the  first  purchaser,  shall  inherit,  in  preference  to  the 
nearer  relations  not  of  that  stock."  In  this  case  the  land  had  de- 
scended to  the  intestate  from  his  father  and  not  his  mother ;  and 
the  descent  cast  under  the  act  in  force  in  1806,  which  provided 
in  similar  cases,  that  "  such  estate  shall  descend,  in  equal  parts, 
to  the  next  of  kin  of  the  intestate,  in  equal  degree."  Our  present 
act,  which  does  not  use  the  words  "next  of  kin,"  was  not  passed 
till  1807.  This  decision,  therefore,  relates  only  to  cases  occurring 
under  the  act  of  1806 ;  and  it  is  not  authoritative  as  to  the  construc- 
tion of  the  act  of  1807,  under  which  we  now  live. 

DESCENT STATUTE  OF. 

§  8.  Having  thus  briefly  adverted  to  the  changes  made  by  stat- 
ute, in  the  canons  of  the  common  law  regulating  descent,  as  ap- 
plied to  the  States  of  this  Union,  and  especially  to  the  State  of 
Mississippi,  we  will  insert  the  statute  of  descent  and  distribution ; 


422  DESCENT.  [CH.  LIX. 

and  as  they  are  both  of  like  import,  they  will  be  considered  to- 
gether, care  being  however  taken  to  notice  such  points  of  differ- 
ence as  may  exist  whenever  they  occur. 

"  When  any  person  shall  die  seized*  of  any  estate  of  inherit- 
ance in  lands,  tenements  or  hereditaments  not  devised,  the  same 


•Interest  in  land  warrants  descends  to  heirs.  3  Yerger's  Repts.  201.  Lands 
patented  to  the  "heirs"  of  the  person  who  entered  and  surveyed  it,  will  vest  in 
them  by  descent,  and  are  subject  to  sale  under  an  execution  against  the  estate  of 
the  decedent.  I  Dana,  211 ;  1  Ohio,  403.  And  where  a  person  was  entitled  to 
a  donation  claim,  under  an  act  of  Congress,  recognised  by  certificate  of  board  of 
commissioners  to  "his  heirs,"  and  confirmed  by  a  patent,  they  take  by  descent. 
Ibid.9l.    The  patent  in  such  case  relates  back  to  the  act  of  Congress.    Ibid. 

If  there  be  a  contract  for  the  purchase  of  land,  it  descends  in  equity  to  the  heirs, 
and  they  may  call  on  the  administrator  to  discharge  the  contract,  out  of  the  per- 
sonal estate,  to  enable  the  heirs  to  demand  a  conveyance  from  the  vendee.  6 
John.  Ch.  Rep.  402. 

And  the  purchase  money  of  lands  sold  by  executory  contract,  belongs  to  the 
vendor's  heirs,  to  whom  the  legal  title  has  descended; — and  if  such  heir  dies,  it 
passes  to  his  heirs.    2  Dana,  386. 

A  covenant  of  warranty  broken  in  the  life-time  of  the  ancestor,  descends  to 
the  heirs.    Cooke's  Repts.  447. 

Lands  directed  by  testator  to  be  sold,  but  not  devised  for  that  purpose,  until  a 
sale,  will  descend  to  the  heir:  and  if  converted,  the  rule  at  law  is  the  same — the 
doctrine  of  conversion  being  confined  to  courts  of  equity.  2  No.  Carolina  Repts. 
439. 

Where  equitable  becomes  united  with  the  legal  estate,  both  being  co-exten- 
sive, the  former  is  merged  in  the  latter,  and  both  descend  according  to  the  rules 
of  law.  I  John.  Ch.  Rep.  417.  But — if  the  trustees  of  a  legacy  for  an  infantyemc 
covert,  which  is  invested  in  lands  and  mortgages  in  their  names  as  trustees,  take 
a  relinquishment  of  the  equity  of  redemption  in  the  mortgaged  premises — the  na- 
ture of  the  infant's  property  is  not  so  changed  as  to  alter  the  course  of  its  descent 
upon  her  death  during  her  minority,  and  the  proceeds  would  go  to  her  husband, 
not  her  heirs.    4  Paige,  409. 

If  the  expression  iu  the  statute  is  nothing  more  than  seized,  without  any  ex- 
planation, the  English  law  is  adopted,  and  ownership,  without  seisin,  is  not  suf- 
ficient to  entitle  the  heir  to  inherit.  See  Comstock's  Digest,  341 — also  6  John.  96 ; 
13  John.  260;  2  Peters,  625.  This  last  decision  was  rendered  on  a  statute  of  Ma- 
ryland, by  which,  said  the  court,  "a  person  claiming  as  heir,  must  prove  himself 
heir  of  the  person  last  actually  seized  of  the  estate." 

And  therefore,  during  the  continuance  of  dower  or  curtesy,  the  heir  has  not 
such  a  seizin  as  will  constitute  him  a  new  stock,  or  create  what  is  called  potset- 
iiafratris.    3  John.  214. 

And  in  Virginia,  before  the  1st  January,  1787,  (when  the  acts  of  Descents  took 
effect,)  if  a  person  entitled  to  a  reversion  in  fee,  expectant  on  an  estate  for  life, 
died  in  the  life-time  of  the  tenant  for  life — such  person  never  had  seizin  of  the 
inheritance,  and  could  not  therefore  transmit  to  his  heirs,  but  the  heirs  of  the  per- 
son last  actually  seised  were  entitled.  6  Munford,  422.  The  act  of  1787,  here 
recited,  uses  the  Avords,  "having  title  to  any  real  estate,"  to  designate  the  kind 
of  interest  which  shall  descend,  and  of  course  abrogated  the  rule  which  required 
actual  seisin. 

But  in  case  of  a  reversion,  if  the  reversioner  alienate  his  interest,  of  which  he 
cannot  have  actual  seizin,  this  will  be  equivalent  to  seizin,  and  will  make  him  a 
new  stock  or  root  of  inheritance.    3  Cruise,  467. 

See  page  419,  note  [:}:] 


CH.  LIX.]  DESCENT.  423 

shall  descend  to  his  or  her  children,  or  their  descendants,  in  equal 
parts* — the  descendants  of  the  deceased  child  or  grand-children 
to  take  the  share  of  the  deceased  parent,  in  equal  parts  among 
them.  And  when  there  shall  be  no  children  of  the  intestate,  nor 
descendants  of  such  children,  then  to  the  brothers  and  sisters  of 
the  intestate,  and  their  descendants  in  equal  parts,  the  descend- 
ants of  a  brother  or  sister  of  the  intestate  to  have  in  equal  parts 
among  them ;  and  when  there  shall  be  no  children  nor  descend- 
ants of  them,  nor  any  of  them,  then  to  the  father,  if  he  be  living, 
if  not,  to  the  mother  of  the  intestate.  If  there  be  no  children  of 
intestate,  nor  descendants  of  such  children,  and  no  brother  or  sis- 
ter, or  descendants  of  them,  nor  father  or  mother — then  such  es- 
tate shall  descend  in  equal  parts,  computing  by  the  rules  of  the 
civil  law.    And  there  shall  be,  in  no  case,  a  distinction  between 


♦According  to  the  principles  of  the  common  law,  an  illegitimate  child  is  "filius 
nuUius,"  and  can  have  no  father  known  to  the  law.  And  when  the  legislature 
speaks  in  general  terms  of  children  of  that  description,  without  making  any  ex- 
ceptions, the  court  is  bound  to  presume  they  designed  to  include  the  whole  class. 
14  Peters,  178. 

In  Connecticut,  a  bastard  may  inherit  of  his  mother — 5  Connt.  R.228;  6  ib.  35. 
And  bastards  there  may  also  inherit  of  each  other.    2  Root,  280. 

In  Massachusetts,  bastards  could  not  inherit  from  their  mother,  till  the  act  of 
1828.    4  Pick.  93. 

In  Kentucky,  bastards  have  no  inheritable  blood,  and  cannot  in  legal  contem- 
plation have  either  brother  or  sister.    2  Dana,  263. 

In  Mississippi,  it  has  been  decided  that  bastards  are  not  comprehended  under 
the  word  "children"  in  the  statute.  But  our  statute  has  so  changed  the  common 
law,  as  to  render  a  child  born  out  of  wedlock,  legitimate  by  the  subsequent 
marriage  of,  and  recognition  by  his  parents.    7  How.  106. 

*'  If  the  mother  of  any  bastard  child,  and  the  reputed  father,  at  any  time  after 
its  birth,  intermarry,  the  said  child  shall  in  all  respects  be  deemed  and  held  legit- 
imate."    How.  &  H.  digest,  ch.  32,  sec.  3,  page  334. 

In  Virginia,  where  a  similar  act  to  this  exists,  it  has  been  decided,  that  an  il- 
legitimate child,  born  before  the  act,  (which  pasied  in  1787,)  of  parents  who  also 
intermarried  before  that  period — the  father  who  died  in  1788,  having  by  his  will 
recognized  such  child  as  his  own — is  entitled  to  an  equal  share  with  the  children 
born  after  such  intermarriage.    3  Henn.  &  Munf.  225. 

An  infant  is  in  existence  for  the  purpose  of  taking  any  estate  which  is  for  his 
benefit,  by  descent,  devise,  or  distribution,  from  the  time  of  his  conception.  4 
Sm.  &  M.  99 ;  2  Paige,  35. 

But  an  infant  must  be  born  alive,  and  after  such  a  period  of  foetal  existence, 
that  its  continuance  in  life  may  reasonably  be  expected.     Ibid. 

Children  born  within  six  months  after  conception,  are  presumed  to  be  incapable 
of  living,  and  therefore  cannot  take  or  transmit  property,  unless  they  actually  tur- 
vive  long  enough  to  rebut  the  presumption.    2  Paige,  35. 

A  child  born  within  eight  months  and  21  days,  after  the  death  of  his  sister — 
held  entitled  to  distributive  share  of  her  estate.     4Sm.&.  M.  99. 

So,  an  infant  delivered  by  the  Caesarean  operation  after  the  death  of  the  mother, 
may  inherit.    2  Paige,  35. 


424  DESCENT.  [CH.  L1X» 

the  kindred  of  the  whole  blood  and  half  blood,  except  the  kin- 
dred of  the  whole  blood  in  equal  degrees,  shall  be  preferred  to 
the  kindred  of  the  half  blood  in  the  same  degree — (saving  to  the 
widow  of  the  intestate,  in  all  cases,  her  dower.)  See  How.  &  H. 
pages  351,  353,  as  to  Dower.  "And  where  there  shall  be  no 
children  of  such  intestate,  nor  descendants  of  them,  then  the 
widow  shall  have  as  her  dower  one  half  of  such  before  mention- 
ed estate  of  her  deceased  husband."  Chap.  36,  sec.  31,  How.  & 
H.  p.  394.  :.; 

DESCENT AS  BETWEEN  HUSBAND  AND  WIFE. 

§  9.  If  any  resident  of  this  State  shall  die  leaving  no  lineal  or 
collateral  relations,  capable  of  inheriting,  but  shall  leave  a  wid- 
ow, such  widow  shall  inherit  the  whole  estate.  Act  1829— 
How.&H.* 

When  any  feme  covert  shall  die  possessed  of  any  estate,  real 
or  personal,  which  might  under  the  existing  laws  of  this  State  be 
subject  to  escheat  to  the  State,  her  husband  shall  take  and  inher- 
it the  same,  and  the  same  shall  vest  in  her  said  husband  for  the 
use  of  himself  and  his  legal  representatives,  forever.  Act  1829 — 
How.  &  H.t 

By  act  of  1846,  sec.  6,  p.  153,  amendatory  of  the  act  of  1839, 
it  is  enacted  that  it  shall  be  competent  for  a  married  woman  by 
deed  of  conveyance  executed  jointly  with  her  husband,  accord- 
ing to  the  laws  of  this  State  in  relation  to  deeds  made  by  feme 
covert,  to  sell  and  convey  her  real  estate  as  fully  and  effectually 
as  she  could  do,  if  she  were  unmarried.  If  any  married  woman 
shall  die  seized  and  possessed  of  real  estate  or  freehold,  acquired 


*By  act  of  1846,  chap.  57,  sec.  1  &  2,  it  is  enacted,  that  the  widow  of  any  de- 
ceased husband  shall  be  allowed  and  entitled  to  all  the  personal  estate  of  her  de- 
ceased husband,  which  is  by  law  exempt  from  sale  or  distress  under  execution — 
and  shall  hold  the  same  free  and  exempt  from  sale  or  distress  for  any  debt  or  de- 
mand whatsoever,  contracted  or  originating  during  the  life  of  such  deceased  hus- 
band, and  from  any  debt  or  demand  which  she  may  contract  after  his  death;  and 
commissioners  to  appraise  the  estate  of  a  deceased  person,  and  set  apart  the  wid- 
ow's dower  and  allowance,  and  to  apportion  insolvent  estates  among  creditors, 
shall  each  be  allowed  out  of  such  estates  $1  per  day,  and  no  more,  for  their  ser- 
vices. 

tThe  husband  is  considered  as  next  of  kin  to  his  wife,  by  relation  of  marriage, 
and  takes  her  property  as  such,  in  case  of  her  death — fbut  whether  so  considered 
or  not,  her  personal  property  remaining  after  death,  goes  to  the  husband,  either 
jure  mariii,  or  as  next  of  kin.    4  How.  224.    But  see  act  of  1846,  supra. 


CH.  1.x. J  DISTRIBUTION.  ^k'dO 

under  the  provisions  of  the  act,  to  which  this  is  an  amendment, 
(act  1839,)  her  husband  surviving  shall  be  entitled  to  tenancy  of 
the  same  by  curtesy,  as  in  other  cases ;  and  if  she  die  possessed 
of  slaves  or  other  personal  chattels  as  her  separate  property,  leav- 
ing issue  of  her  body,  either  by  a  former  husband  or  by  surviving 
husband,  such  slaves  and  other  personal  chattels  shall  descend 
to  her  child  or  children,  in  equal  shares.  But,  if  she  die  withoui 
issue  surviving  her,  the  same  slaves  and  other  personal  property 
shall  vest  in  the  surviving  husband. 


CHAPTER  LX. 


DISTRIBUTION. 


§  1,  When  any  person  shall  die  possessed  of  goods  and  chat- 
tels, or  personal  estate  not  bequeathed,  the  same  shall  descend* 
to,  and  be  distributed  among  his  or  her  heirs  in  the  same  way 
and  manner  that  real  estate  not  devised,  descends  by  this  act — 
Provided,  that  the  goods,  chattels  or  personal  estate  of  any  per- 
son deceased,  whether  testator  or  intestate,  shall  stand  chargeable 
with  the  payment  of  all  the  just  debts  and  funeral  expenses  of 
the  deceased,  and  charges  of  settling  the  said  estate.     And  after 


*In  the  case  of  T.  &  J.  Cable  vs.  Martin  &  Bell,  it  was  decided  by  the  High 
Court  of  Errors  and  Appeals  of  Mississippi,  that  "  personal  property  does  not 
^descend'  according  to  the  strict  technical  meaning  of  the  term,  but  is  a  statutory 
descent,  and  was  intended  to  designate  only  the  persons  entitled  to  inherit,  and 
not  the  kind  of  title  conferred.  Descent  is  a  technical  term,  signifying  the  means 
whereby  the  lands  are  derived  from  the  ancestor  to  his  heir.  But  it  will  not  do 
to  adopt  it  with  all  its  force,  and  apply  it  to  personal  property  not  bequeathed. — 
If  it  were  so  construed,  it  would  deprive  the  administrator  of  the  possession  of 
personal  property — for  the  heir  is  entitled  to  his  inheritance,  immediately  on  the 
tleath  of  his  ancestor:  whereas  it  is  clear  that  the  administrator  is  entitled  to  Um 
possession  of  the  personal  property.    1  How.  558. 

54 


426  DISTRIBUTION.  [CH.  LX. 

the  payment  thereof,  the  surplusage,  in  case  of  intestacy,  shall 
be  decreed  by  the  Orphan's  court,  to  the  persons  entitled  to  distri- 
bution thereof,  according  to  the  provisions  of  this  act ;  and  the 
lands,  tenements,  and  hereditaments  of  the  testator  or  intestate, 
shall  stand  chargeable  with  all  the  debts  over  and  above  what  the 
personal  estate  shall  be  insufficient  to  pay,  as  aforesaid,  saving  to 
the  widow  her  dower  in  all  cases. 

§  2.  Where  any  of  the  children  of  a  person  dying  intestate,  or 
their  issue,  shall  have  received  from  such  intestate,  in  his  life- 
time, any  real  or  personal  estate  by  way  of  advancement,  and 
shall  choose  to  come  into  the  partition  and  distribution  of  the  es- 
tate with  the  other  parceners  and  distributees,  such  advancement, 
both  of  real  and  personal  estate,  shall  be  brought  into  hotch-pot 
with  the  whole  estate,  real  and  personal,  descended,  eind  such 
party  returning  such  advancement  as  aforesaid,  shall  thereupon 
be  entitled  to  his  or  their  proportion  of  the  whole  estate  so  de- 
scended, both  real  and  personal — Provided,  that  when  an  infant 
having  title  to  personal  estate,  shall  die  before  attaining  to  the  age 
when  one  may  legally  bequeath  that  kind  of  property,  or  after 
obtaining  such  age,  shall  die  without  bequeathing  it,  those  of  his 
or  her  kindred  shall  succeed  to  the  said  infant,  who  would  have 
succeeded  if  he  or  she  had  been  at  the  time  of  his  or  her  death 
of  the  age  of  21  years.    Acts  1821— How.  &  H.  394.* 

§  3.  In  the  distribution  of  real  and  personal  estate,  it  must  be 
ascertained  before  any  order  of  distribution  can  be  made,  and  is- 
sued— who  are  the  persons  entitled  under  it  ?  What  advances 
have  been  made  to  any  of  them  ?  Whether  any  of  the  real  es- 
tate was  held  in  common  or  joint  tenancy — and  if  so,  how  ? — 
What  lands  and  estate  are  to  be  divided,  and  in  what  proportion 
of  each  ?  And  the  parties  interested  must  have  been  duly  noti- 
fied.    1  Chip.  357. 


*In  the  distribution  of  real  or  pereonal  estate  among  heirs,  no  deduction  can 
be  made  from  the  share  of  any  one  of  them,  on  account  of  any  debt  due  from  him 
to  the  estate.  17  Mass.  81,93;  ib.  356.  See  ante,  pages  351,  352 — and  see  1 
Binney,  35,  8,  in  which  the  opposite  rul«  it  established — and  see  2  Har.  &  John. 
191. 


CH.  LX.]  DISTRIBUTION.  427 

§  4.  By  advancement,  is  meant  such  real  or  personal  estate,  as 
the  father  in  his  life-time  may  have  bestowed  on  one  or  more  of 
his  children.  And  to  constitute  such  an  advancement,  the  title 
must  have  passed  from  the  father  to  his  child,  during  the  life  of 
the  parent,  though  not  the  possession.  3  Bac,  abr.  And  it  must 
have  been  received  from  the  intestate  himself  4  How.  356. — 
It  may  therefore  be  defined  to  be  an  irrevocable  gift,  by  a  parent, 
in  his  life-time,  to  his  child,  on  account  of  such  child's  share  of 
his  estate  after  the  parent's  decease.    6  Watts,  87. 

Questions  of  advancement  depend  on  the  intention  of  the  pa- 
rent; and  of  this  the  declarations  of  the  parent  at  the  time,  or  the 
admissions  of  the  child,  at  the  time  or  afterwards,  would  seem  to 
be  evidence.  6  Wh.  370.  If  there  be  no  evidence  at  all  on 
the  subject,  reference  must  be  had  to  its  amount  and  character. — 
Ihid* 

In  general,  if  a  father  takes  a  conveyance  in  the  name  of 
a  child  unprovided  for,  it  is  held  to  be  an  advancement.  4  S. 
&  R.  333. 

Where  a  testator,  who  had  lent  money  to  a  son-in-law,  after- 
wards made  his  will,  and  bequeathed  his  estate  among  his  chil- 
dren equally,  and  died,  and  afterwards  the  son-in-law  died — Held: 
the  legacy  to  the  daughter  could  not  be  defeated  by  evidence  of 
the  declarations  of  the  testator  made  after  the  will,  that  the  mon- 
ey lent  to  the  son-in-law  was  to  be  considered  part  of  the  legacy. 
10  Watts,  54. 

A  provision  by  settlement  in  consideration  of  the  childs  mar- 
riage, or  voluntary,  is  an  advancement  pro  tanto.    2  P.  Williams, 


•Entries  made  in  a  book,  by  the  father,  though  without  the  knowledge  of  the 
child,  of  advancements  to  such  child,  are  competent  evidence  to  charge  the  latter. 
6  Watts.  86.  But  if  he  afterwards  makes  a  will,  it  becomes  then  a  question,  de- 
pending on  the  will  and  other  testimony  de  hors.     lb.  257. 

Thus  where  a  testator  made  the  following  provision  in  his  will,  respecting  his 
children— "Each  to  be  charged  in  the  distribution  with  what  I  have  given  them, 
or  shall  have  given  them  at  the  time  of  my  death,  and  with  which  I  have  charged 
them  in  my  book,  and  in  my  foregoing  will  and  testament" — on  an  issue  to  ascer- 
tain the  truth  and  validity  of  certain  entries  in  the  testator's  books — Held:  such 
entries  were  not  conclusive,  and  it  was  competent  to  enquire  of  a  witness,  who 
had  made  entries  in  the  book;  whether  certain  sums  therein  charged  had  actually 
been  charged ;  and  also  that  evidence  of  the  testator's  admission,  that  the  charges 
were  azcessive,  was  admissible.     5  Watts,  80. 


428  DISTRIBUTION.  [OH.  LX. 

440;  2  Vern.  638.  It  may  not  only  be  of  land,  but  a  charge  on 
land;  and  it  may  be  contingent.  2  P.  Wms.  441;  Toller,  377-8. 
But  the  contingency  must  be  such  as  to  arise  within  a  reasonable 
time. — IJ;^.  178. — And  such  contingent  provision  may  be  valued 
and  brought  into  hotch-pot — 2  P.  Wms.  435 — or  the  court  may 
order  that  if  the  contingency  happen,  the  portion  shall  be  so  dis- 
tributed as  to  make  the  rest  of  the  children  equal  with  the  child 
so  advanced.     lb.  446. 

§  5.  A  father  may  confer  many  benefits  on  a  child  vi^hich  shall 
not  be  considered  an  advancement — as  small  sums  of  money,  a 
gold  watch,  wedding  attire,  money  expended  for  the  maintenance 
and  education  of  the  child,  or  laid  out  for  his  travels,  &c.  3  P. 
Wms.  317;  2  Dess.  127. 

Where  a  father  whose  estate  appeared  on  settlement  to  ex- 
ceed ^120,000,  and  who  had  four  children,  had  bought  furni- 
ture for  a  daughter,  on  her  marriage,  to  the  amount  of  $1132, 
and  it  was  proved  that  he  declared  he  had  given  the  furniture  to 
her  as  a  gift — Held,  this  was  no  advancement.    6  Whart,  370. 

If  a  parent  makes  advancements  to  one  or  more  of  his  children, 
and  afterwards  makes  his  will,  disposing  of  the  whole  of  his  es- 
tate among  his  children,  without  taking  any  notice  of  the  advance- 
ments, it  is  conceived,  that  each  child  may  claim  what  is  given 
to  him,  without  deducting  such  advancements.     10  Watts,  57. 

A  debt  from  a  child  to  a  parent,  barred  by  the  statute  of  limi- 
tations, cannot  be  converted  by  the  parent  into  an  advancement, 
by  his  declarations  to  that  effect,  without  the  assent  of  the  child. 
4  Whart.  130. 

A  loan  or  payment  by  the  father  to  his  child,  may  be  consid- 
ered as  a  debt  and  not  an  advancement,  though  no  security  be 
taken. — Ibid.  And  where  such  money  is  charged  by  the  parent 
with  interest,  it  will  be  a  debt. 

And  even  where  it  was  proved  that  the  decedent  had  declar- 
ed that  the  bonds  of  his  sons-in-law  were  not  to  be  paid,  but 
merely  held  as  evidence  of  advancement,  and  that  he  meant  to 
do  with  all  his  children  in  like  manner — held,  this  would  not 
convert  the  debt  into  an  advancement.    1  Watts  &  Serg.  390. 


CH.  LX.]  *  DISTRIBUTION.  '  429 

§  6.  It  is  only  in  case  of  intestacy,  that  a  child,  advanced  by  a 
parent,  is  entitled  to  an  equal  distribution  with  the  other  chil- 
dren, on  throwing  his  share  into  the  common  stock.  1  Browne's 
R.311. 

•"  §  7.  It  has  already  been  seen  that  a  widow  derives  no  benefit 
from  hotch-pot,  but  takes  her  distributive  share  of  her  husband's 
property,  without  the  advancement  being  brought  in.  Ante.  p. 
413.  In  North  on  Probates,  p.  216,  in  note,  it  is  said  this  rule 
is  founded  on  the  phraseology  of  the  English  statute  directing  the 
advancement  to  be  brought  into  hotch-pot,  "with  the  other  chil- 
dren"— and  that  as  our  statute  directs  it  to  be  brought  into  hotch- 
pot "idth  the  whole  estate,  descended,"  the  English  rule  excluding 
the  widow,  cannot  apply  to  cases  of  distribution  in  this  State. — 
In  support  of  this  view,  see  8  Ves.  51,  64. 

By  the  English  law,  an  advancement  by  the  mother,  could  not, 
under  the  act,  be  brought  into  hotch-pot — the  words  of  the  English 
act  limiting  the  rule  to  cases  of  "intestacy  of  the  father;"  but  as  our 
statute  refers  to  cases  of  a  "person  dying  intestate,"  it  is  consider- 
ed by  Mr.  North  that  the  English  rule  is  altered  by  our  statute. 

This  may  be  a  correct  view,  with  the  exception  however  of 
cases  where  the  "person  dying  intestate,"  is  the  father.  In  such 
case  it  is  difficult  to  conceive  why  a  provision  made  by  the  moth- 
er to  a  child  should  be  brought  into  hotch-pot  in  the  distribution 
of  the  father's  estate.  See  North  on  Probates,  216,  citing  2  P. 
Wms.  356. 

§  8.  An  advancement  in  lands,  made  by  a  father  to  a  child,  is 
to  be  estimated  according  to  its  value,  at  the  time  of  its  advance- 
ment, and  not  at  the  time  of  the  father's  death.  1  S.  &  R.  422. 
So,  where  the  advancement  is  of  the  personal  estate.     Ibid. 

§  9.  The  Orphan's  court  is  generally  the  proper  tribunal  for 
settling  questions  of  advancement ;  yet  its  jurisdiction  is  not  ex- 
clusive. In  an  action  by  the  children  or  grand-children  to  recov- 
er a  distributive  share,  the  Supreme  court  has  a  right  to  entertain 
such  questions.    5  Rawle,  213. 

§  10.  Any  person  entitled  to  the  distribution  of  an  intestate's  es- 
tate, may  at  any  time  after  the  expiration  of  13  months  from  grant- 
•ing  the  letters  of  administration,  petition  the  Probate  court  of  the 


430  DISTRIBUTION.  [CH.  LX. 

proper  county  *  setting  forth  his  claim  :t  whereupon,  it  shall  be 
the  duty  of  the  court  to  grant  a  rule  on  the  administrator  or  ad- 
ministrators, to  make  the  distribution  agreeably  to  law.  But  no 
administrator  or  administrators  shall  be  compelled  to  make  dis- 
tribution at  any  time,  until  bond  and  security  be  given  by  the 
person  entitled  to  distribution,  to  refund  a  due  proportion  of  any 
debts  or  demands  which  may  afterwards  appear  against  the  intes- 
tate, and  the  costs  attendant  on  the  recovery  of  such  debts.  How. 
&  H.  406. 

§  11.  A  refunding  bond  is  necessary,  before  the  estate  has  been 
settled,  but  not  after  such  settlement.  It  is  a  condition  precedent, 
4  Sm.  &  M.  625. 

In  a  suit  for  distribution  or  a  legacy,  before  the  estate  is  settled, 
the  petition  must  allege  that  a  refunding  bond  with  security  has 
been  tendered ;  or  if  after  settlement,  must  aver  that  the  estate 
has  been  settled ; — without  one  or  the  other,  the  distributee  can- 
not sue.  2  How.  808.  972;  1  Sm.  &  M.  546.  And  if  entitled  at 
all,  the  complainant  may  have  a  decree  for  immediate  distribu- 
tion, and  it  is  error  to  permit  the  administrator  to  retain  posses- 
sion of  the  property  for  the  purpose  of  gathering  the  growing 
crop.  Ibid.  See  ante,  pages  196,  199.J  As  to  the  position,  in 
regard  to  the  estate,  of  judgment  creditors,  see  7  How.  224. 

§  12.  Where  a  distributee  purchases  property  at  an  administra- 
tor's sale,  the  Probate  court  may  decree  the  amount  of  his  pur- 
chase, to  be  deducted  from  his  distributive  share  of  the  estate.  1 
How.  275.  And  such  distributee  is  likewise  liable  to  the  admin- 
istrator.    Ibid. 


♦All  the  claimants  must  be  parties  to  the  petition.  7  How.  106;  2  Sm.  &,  M. 
30.  Widow  and  heirs  may  join.  7  How.  188.  As  to  joint  parties  generally,  see 
Jbid.  Where  there  is  danger  of  waste,  a  remainder-man  only  has  a  remedy  for  his 
ultimate  security.  7  How.  425 — But  see  How.  &  H. — where  certain  acts  work 
a  forfeiture  of  the  life-tenant's  estate.  As  to  husband  and  wife,  see  4  How.  224, 
and  lb.  311.  Legacies  are  choses  in  action,  and  if  joint,  remain  so  til!  distribu- 
tion,    lb.  39,  31 1 . 

fThe  petition  must  set  forth,  the  condition  of  the  estate,  a  sufficient  lapse  of 
time  to  entitle  the  petitioner  to  distribution,  and  what  is  the  character  of  all  the 
estate.    2  Sm.  &M.  30.     Also,  the  time  at  which  letters  were  granted.    Ibid. 

^An  administrator  cannot  charge  an  estate  with  advances  made  to  the  heirs  till 
the  debts  are  paid.     1  How.  275. 

The  personal  property  of  a  deceased  debtor  in  the  hands  of  a  distributee,  after 
distribution  made,  is  liable  to  the  satisfaction  of  a  judgment  obtained  against  an 
■dminiptrator.     1  How.  207. 


CH.  LX.]  DISTRIBUTION.  431 

§  13.  Any  person  entitled  to  a  legacy  or  any  estate  by  will, 
shall  be  entitled  to  the  provisions  of  the  foregoing  act.  (See  sec. 
10,  antt)  Provided  that  nothing  herein  contained  shall  be  so 
construed  as  to  compel  any  distributee  to  give  bond  and  security 
as  aforesaid,  for  his  or  her  distribution  of  the  estate  of  any  intes- 
tate, after  a  final  settlement  shall  have  been  made  by  the  admin- 
istrator or  administrators.    How.  &  H.  406.* 

§  34.  Any  person  having  a  legacy  bequeathed  in  any  last  will 
or  testament,  may  sue  for  and  recover  the  same  at  common  law. 
How.  &  H.  411.    See  avit.  p.  196,  199. 

§  15.  When  any  person  or  persons  having  a  legacy  bequeath- 
ed in  any  last  will  and  testament,  shall  sue  for  and  recover  the 
same  either  at  law,  it  shall  be  the  duty  of  the  Judge  of  the  court 
or  jury,  as  the  case  may  be,  to  give  judgment  in  case  of  a  decree 
of  the  court,  and  a  verdict  in  case  of  a  trial  by  jury,  for  ten  per 
cent,  damages,  in  addition  to  the  interest  now  allowed  by  law, 
upon  the  amount  of  money  so  recovered  or  decreed,  and  also  up- 
on the  worth  of  property  in  case  of  a  specific  legacy.  How.  & 
H.421. 

The  above  rule  as  to  damages,  in  case  of  a  recovery,  shall  ap- 
ply to  suits  by  distributees  against  administrators,  and  wards  a- 
gainst  guardians.     How.  &  H.  421. 

See  title  "Legacy,"  p.  196,  199.t 


♦See  note  ante.  sec.  11.  As  to  actions  for  legacies,  see  ante.  p.  196, 199.  As  to 
doctrine  of  legacies,  see  ante.  p.  169,  196. 

Ail  personal  estate,  undisposed  of,  and  which  by  lapse,  or  void  bequest  for  ille- 

§ality,  does  not  pass  as  directed  by  the  testator,  goes  to  the  residuary  legatee.  I 
m.  i  M.  Ch.  R.  591 .    Otherwise,  as  to  the  real  estate.     1  Sm.  &  M.  60. 

A  suit  for  a  legacy  must  be  brought  against  the  executor  or  administrator  in 
the  jurisdicdon  having  cognizance  of  the  will — 1  Sm.  &  Marsh.  Ch.495 — except 
where  the  robject  of  the  legacy  is  traced  to  the  possession  of  the  heir  in  a  differ- 
ent jurisdiction.    Ibid. 

A  specific  legatee,  may  by  our  statute,  fin  Mississippi,)  maintain  a  suit  at  law, 
without  the  assent  of  the  executor.    2  Sm.  &  M.  527. 

The  children  of  a  decedent  cannot  bring  any  action  for  his  personal  property, 
without  administration — and  even  against  an  administrator  they  cannot  join  the 
same  action  for  their  distributive  shares.  t4S.  &R.  110.  But  if  the  property 
came  into  the  hands  of  a  third  person,  who  acknowledged  that  he  held  it  in  trust 
for  the  children,  thev  may,  by  their  guardian,  maintain  a  joint  action,  for  money 
had  and  received,  without  administration.    Ibid. 

tWbeie  a  balance  remains  in  the  hands  of  executors,  the  Orphan's  court  may 
decree  a  distribution,  without  an  action  at  law.     17  S.  &  R.  31. 


432  DISTRIBUTION.  [CH.  LX. 

§  16.  When  any  person  by  last  will  and  testament  shall  de- 
vise his  or  her" real  estate,  or  any  part  thereof,  to  two  or  more  de- 
visees, not  ascertaining  the  metes  and  boundaries  of  each  devi- 
see's share,  any  of  whom  being  under  age,  such  devisees  may  ap- 
ply to  the  Probate  court  of  the  county,  in  which  the  said  last  will 
and  testament  was  proved  and  recorded ; — and  the  said  court  on 
application  of  any  one  of  the  said  devisees,  may  order  a  division 
thereof,  to  be  made  agreeably  to  the  true  interest  and  meaning  of 
the  said  last  will  and  testament.  And  each  devisee's  share  shall 
be  ascertained  by  three  or  five  disinterested  freeholders  to  be  ap- 
pointed by  the  court ;  and  the  report  made  thereon  by  them,  or  a 
majority  of  them,  under  their  hands  and  seals  to  the  next  Probate 
court,  after  such  division  shall  be  made  and  approved  by  the  said 
court  and  entered  on  the  records  thereof,  shall  be  conclusive  on 
all  the  parties  concerned.*  And  when  the  real  estate  of  any  per- 
son dying  intestate  shall  descend  to  two  or  more  children,  or  oth- 
er heirs  of  such  intestate,  one  or  more  of  whom  being  under  age, 
the  said  court,  on  application,  may  order  and  direct  a  division  of 
such  real  estate,  agreeably  to  the  law  of  descents,  the  metes  and 
bounds  of  each  heir's  share  to  be  ascertained  by  three  or  five  dis- 
interested freeholders,  to  be  appointed  as  aforesaid,  whose  report, 
or  that  of  a  majority  of  them,  returned,  approved  and  recorded  as 
aforesaid,  as  in  the  case  of  devises,  shall  be  conclusive  on  all  par- 
ties concerned ;  and  in  either  case,  the  report  of  said  freeholders 


♦When  the  real  estate  is  incapable  of  division,  the  Judge  of  Probate  may  as- 
sign part  or  the  whole,  to  some  of  the  heirs,  to  hold  as  tenants  in  common,  they 
consenting  to  take  in  that  manner.  7  Pick.  209.  On  return  of  the  commission- 
ers, the  court  must  make  a  decree  of  distribution,  and  not  merely  accept  the  re- 
port.   Ibid. 

A  distribution,  of  a  decedent's  estate  by  distributors  appointed  by  the  heirs  and 
devisees,  is  illegal;  and  a  promise  by  one  of  the  heirs  to  pay  a  sunA)f  money  in 
consideration  thereof,  is  without  consideration  and  void.    3  Day,  260. 

A  testator  devised  the  south  half  of  the  farm  to  A.,  and  the  north  half  to  B., 
without  specifying  the  divisional  line,  or  appointing  any  one  to  fix  it — the  court 
of  Probate  can  legally  order  a  division.     7  Count.  21 . 

Where  A.  died  intestate,  seized  of  land  on  which  was  a  mill  in  full  operation, 
on  a  division  of  the  land  ^under  the  Maryland  act  of  descent,)  the  mill  was  on  the 
portion  allotted  to  B.,  and  the  dam  on  the  portion  allotted  to  C. — Held:  B.  might 
use  the  mill  and  dam,  in  like  manner  as  the  intestate  did,  in  his  life-time.  5Har. 
&  John.  82. 

The  reversionary  interest  of  the  heirs  of  a  deceased  person  in  lands  in  which  his 
widow  has  an  estate  in  dower,  may  be  the  subject  of  distribution  among  those 
heirs,  during  such  widow's  life.    9  Connt.  225. 


OH.  LX.]  DISTRIBUTION.  433 

shall  be  returned  under  oath — Provided,  that  the  devisees  or 
heirs,  or  the  guardian  of  such  as  are  under  age  in  this  State,  and 
not  applying  for  such  division,  shall  have  such  notice  of  the  time 
and  place  of  the  meeting  of  said  freeholders,  for  the  purpose  of 
making  the  said  division,  as  the  court  shall  direct.  How.  &  H. 
412.* 

§  17.  The  Probate  court  shall  order  a  division  of  personal  es- 
tate among  heirs  or  legatees  in  the  same  manner  and  subject  to 
the  same  regulations  as  are  prescribed  for  the  partition  of  real  es- 
tate among  them.  And  the  commissioners  appointed  for  that 
purpose,  shall  be  commissioners  for  the  division  of  both  real  and 
personal  estate.     How.  &  H.  415.t 

§  18.  Where  lands,  tenements  or  hereditaments,  shall  descend 
from  a  person  dying  intestate,  and  an  equal  division  thereof  can- 
not conveniently  be  made,  it  shall  be  lawful  for  the  court  of  ChaH- 
cery  or  the  Orphan's  court  of  the  county  by  which  the  adminis- 
tration to  the  estate  of  the  intestate  was  granted,  to  direct  the  sale 
of  such  lands,  tenements  or  hereditaments,  and  the  distribution  of 
the  money  arising  therefrom  ,|  according  to  the  rights  of  each 
claimant.    How.&H.  409.    See  title  "Partition." 


*In  the  partition  of  an  estate  among  keirs  and  devisees,  notice  must  be  giv«n 
to  all  parties  interested,  or  they  will  not  be  bound  bv  the  acts  of  the  court  making 
partition.    1  How.  R.  380. 

tA  bill  or  petition  for  the  division  of  real  estate  of  an  ancestor,  cannot  be  join- 
ed with  an  application  for  the  distribution  of  the  personal  estate  in  the  hands  of 
an  administrator,  by  a  co-heir.  It  has  been  held  bad,  for  its  multifariousness  in 
demanding  several  matters  of  distinct  natures.     1  How.  130. 

:f  Where  an  executor  is  directed  by  the  will  of  his  testator  to  sell  the  real  as  well 
as  the  personal  estate,  and  to  distribute  the  surplus,  after  payment  of  debts,  among 
legatees,  he  may  assign  the  bonds  taken  for  the  property  sold,  to  the  persons  enti- 
tled to  distribution,  and  be  discharged  as  to  so  much — the  bonds  appearing  to  have 
been  well  secured  when  tak^,  and  to  remain  due  from  responsible  persons  at  the 
time  of  such  assignment.    4  Munf.  360. 

Where  land  is  decreed  to  one  heir  by  order  of  the  Orphan's  court,  the  purchase 
money  due  to  the  others  is  a  lien  on  the  land;  but  a  release  by  the  heirs  of  one 
of  those  heirs,  who  is  dead,  is  binding  on  all  but  creditors.  7  S.  &.  R.  43.  See 
also  16  Mass.  122;  7  Pick.  209.  So,  where  mortgage  is  directed.  11  S.  &.  R. 
325. 

Where  a  testator  directed  land  to  be  sold,  and  certain  legacies  to  be  paid  out 
of  the  proceeds — Held :  the  surplus  went  to  the  heir,  and  not  the  executor  or  next 
of  kin.    9S.  &.R.424. 

Where  land  assigned  by  commissioners  was  not  included  in  the  estate  of  the 
decedent,  the  court  will  order  the  report  to  be  set  aside,  as  well  as  the  division — 
more  than  three  months,  (the  time  limited  in  N.  J.)  after  such  report  was  allowed. 
2  South.  554. 

55 


434  PARTITION.  [CH.  LXI. 


CHAPTER  LXI. 

PARTITION, 

§  1 .  Any  person  being  a  coparcener,  joint  tenant,  or  tenant  in 
common,  in  any  tract  or  tracts  of  land,  within  this  State,  may  at 
any  time  apply  to  a  Judge  of  the  Supreme  court,  the  Chancellor 
of  the  State,  or  the  presiding  justice  of  the  county  court,  of  any 
county  in  this  State,  wherein  such  lands  may  lie,  for  a  partition 
of  such  tract  or  tracts  of  land ;  whereupon  the  said  judge,  chan- 
cellor or  justice,  shall  ascertain  the  number  of  equal  shares  or 
parts,  in  which  such  tract  or  tracts  were,  or  at  the  time  of  such 
application,  are  held  by  the  original  coparceners,  joint  tenants,  or 
tenants  in  common,  and  shall  nominate  three  respectable  free- 
holders, not  interested  in  the  said  land,  as  commissioners  to  mak6 
partition  of  such  tract  or  tracts,  into  as  many  parts  or  shares  as  the 
same  was  originally  held ;  and  the  said  judge,  chancellor  or  jus- 
tice, shall  thereupon  order  an  advertisement  to  be  inserted  in  one 
of  the  public  newspapers  of  this  State,  and  in  such  other  public 
newspapers  or  places  as  the  judge,  chancellor  or  justice  aforesaid, 
shall  direct,  for  two  months  successively,  prior  to  the  day  men- 
tioned in  said  advertisement,  on  which  the  commissioners  are  to 
be  appointed,  in  the  form,  and  to  the  effect  following : 

"  By esquire,  judge  of  the  supreme  court,  chancellor  of 

the  state,  or  presiding  justice  of  the  county  court,  of  the  county 
of ,  (as  the  case  may  be)  notice  is  hereby  given,  that  on  ap- 
plication to  me,  by of ,  who  claims  an  undivided 

part  of  all  that  tract  of  land,  (giving  a  description  of  the  tract  or 
tracts  intended  to  be  divided) — I  have  nominated  A.  B.,  C.  D., 
and  E.  F.,  commissioners,  to  divide  the  said  tract  (or  tracts)  of 
land  into  equal  shares  or  parts ;  and  unless  proper  objections  are 

stated  to  me,  at on  the day  of next,  the  said  A.  B., 

C.  D.,  and  E.  E.,  will  then  be  appointed  commissioners,  to  make 
partition  of  the  said  lands,  pursuant  to  an  act  entitled  '  an  act 


CH.  LXI.]  PARTITION.  435 

concerning  the  partition  of  lands  held  by  coparceners,  joint  ten- 
ants, and  tenants  in  common.' 
"Given  under  my  hand,  this day  of ." 

§  2.  If  no  objection  be  made  before  the  said  judge,  chancellor, 
or  justice,  (as  the  case  may  be,)  on  the  day  appointed  by  him  for 
the  purpose,  to  the  persons  nominated  as  commissioners,  then  the 
said  judge,  chancellor,  or  justice  shall,  in  writing  under  his  hand 
and  seal,  appoint  the  persons  so  nominated  to  be  commissioners, 
to  divide  the  said  land  pursuant  to  the  directions  prescribed  in 
this  act;  and  the  said  judge,  chancellor,  or  justice  shall,  in  the 
said  writing,  describe  the  tract  or  tracts  to  be  divided,  and  direct 
the  number  of  parts  or  shares  into  which  the  same  is  to  be  allot- 
ted ;  and  if  objection  be  made  to  the  persons  nominated  as  com- 
missioners, or  any  of  them,  the  said  judge,  chancellor,  or  justice, 
shall  then  proceed  to  hear  and  determine  such  objection ;  and  in 
case  he  find  it  well  founded,  then  he  shall  appoint,  under  his 
hand  and  seal,  other  fit  and  disinterested  persons,  in  the  room  of 
such  as  he  may  think  proper  to  reject.  Acts,  1822 — How.  & 
H.  354. 

§  3.  The  commissioners  so  sfppointed,  before  they  proceed  to 
the  execution  of  the»powers  and  authority  vested  in  them  by  this 
act,  shall  be  severally  sworn  or  affirmed,  before  a  judge  of  the  su- 
preme court,  the  chancellor,  a  justice  of  the  county  court,  or  a 
justice  of  the  peace  of  the  county,  that  they  will  honestly,  faith- 
fully and  impartially  make  the  partition  intended,  and  perform 
the  duties,  trust  and  services,  required  of  them  by  this  act,  to  the 
best  of  their  skill,  knowledge  and  judgment.     Ibid. 

§  4.  The  commissioners  shall  cause  a  survey  to  be  made  in 
their  presence,  of  the  tract  or  tracts  to  be  divided,  and  shall  then 
proceed  to  divide  the  same  into  the  number  of  parts  or  shares  di- 
rected by  the  said  judge,  chancellor,  or  justice,  in  the  writing  con- 
taining their  appointment,  each  part  or  share  to  contain  one  or 
more  lots,  as  the  commissioners  may  think  proper,  they  having 
due  regard  in  the  partition  to  the  situation,  quantity,  quality,  and 
advantages,  of  each  part  or  share,  so  that  they  may  be  equal  in 
value,  as  nearly  as  may  be ;  and  if  the  bounds  of  any  tract  or 
tracts,  so  to  be  divided,  shall  be  controverted,  the  commissioners 


436  PARTITION.  fcH.  LXf^ 

are  hereby  directed,  if  such  controverted  part  is  valuable,  to  sep- 
arate the  same  from  the  part  not  controverted,  and  make  partition 
of  the  tract  or  tracts,  in  such  manner  that  a  proportion  of  the  con- 
troverted part  may  be  allotted  to  each  share,  as  well  as  a  portion 
of  the  part  not  controverted.  And  the  said  commissioners,  pre- 
vious to  the  said  survey,  shall  administer  an  oath  or  affirmation  to 
the  surveyor  and  chain-bearers,  that  they  will  well  and  truly  per- 
form their  respective  duties  honestly  and  impartially ;  which  oath 
or  affirmation  any  one  of  the  said  commissioners  is  hereby  em- 
powered to  adminisier.     Acts,  1822 — How.  &  H.  354. 

§  5.  The  said  commissioners  shall  number  the  several  parts  or 
shares  laid  off  by  them,  from  number  one,  progressively ;  and 
shall,  in  the  same  manner,  number  each  lot  in  the  several  shares, 
if  the  same  contain  more  than  one  lot ;  and  shall  make  a  true  field- 
book,  specifying  the  bounds  and  numbers  of  each  lot,  and  also  a 
map  or  maps  of  the  tract  or  tracts  on  which  the  several  lots  or 
shares  shall  be  laid  down  and  numbered;  and  shall  keep  an  ex- 
act and  particular  account  of  the  time  expended  in  the  execution 
of  their  duties,  and  of  the  money  due  for  the  same ;  and  also  of  all 
expenses  accrued  for  surveying  or  otherwise,  agreeably  to  the  di- 
rections of  this  act.  And  the  said  commissioners  shall,  thereup- 
on, give  notice  by  advertisement  in  manner  aforesaid,  for  three 
weeks  successively,  that  on  a  certain  day,  (not  less  than  one  month 
from  the  date  of  such  notification,)  and  at  a  place  therein  named, 
attendance  will  be  given,  and  an  allotment  by  ballot  take  place, 
of  the  several  lots  or  shares  of  the  tract  or  tracts  therein  described, 
to  the  original  coparceners,  joint  tenants,  and  tenants  in  common, 
their  heirs  or  assigns.     How.  &  H.  355. 

§  6.  On  application  made  to  the  said  judge,  chancellor,  or  jus- 
tice, by  any  one  of  the  parties  to  the  partition  intended  to  be 
made,  the  said  judge,  chancellor,  or  justice,  shall  attend  at  the 
time  and  place  specified  in  the  advertisement  of  the  commission- 
ers, and  shall,  with  the  assistance  of  the  said  commissioners,  pro- 
ceed to  allot  the  several  parts  or  shares  of  the  tract  or  tracts  inten- 
ded to  be  divided,  in  the  manner  hereinafter  mentioned;  but  if 
no  application  be  made  to  the  said  judge,  chancellor,  or  justice 
for  his  attendance,  then  the  said  commissioners  shall,  on  the  day 


CH.  LXI.J  PARTITION.  437 

appointed  for  the  purpose,  proceed  in  a  public  manner  to  num- 
ber as  many  tickets  as  there  are  shares  of  land  marked  on  the  map, 
which  shall  be  put  in  a  box ;  and  the  names  of  the  original  co- 
parceners, joint  tenants,  or  tenants  in  common,  shall  be  put  in 
separate  tickets  in  another  box,  when  a  person  appointed  by  the 
said  judge,  chancellor,  or  justice,  or  commissioners,  shall  proceed 
to  draw  a  ticket  of  the  names,  and  then  a  ticket  of  the  numbers, 
and  so  proceed  until  all  the  tickets  are  drawn ;  and  the  share  on 
the  map  bearing  the  number  of  the  ticket  drawn  next  after  draw- 
ing the  ticket  Avith  the  name,  shall  be  the  separate  and  divided 
share  of  that  original  coparcener,  joint  tenant,  or  tenant  in  com- 
mon, his  or  her  heirs  or  assigns,  in  the  land  so  divided ;  of  which 
balloting  the  said  judge,  chancellor,  or  justice  or  commissioners, 
shall  make  a  full  and  ample  certificate,  under  his  or  their  hands 
and  seals,  specifying  particularly  the  time,  place,  and  manner  of 
ballotting,  and  the  said  allotment  of  the  shares.  How.  &  H. 
355. 

§  7.  The  said  judge,  chancellor,  or  justice,  or  commissioners, 
are  hereby  authorized,  as  the  case  may  require,  to  issue  his  their 
precept  or  precepts,  under  his  or  their  hands  and  seals,  command- 
ing such  person  or  persons,  who  are  able  to  give  any  necessary 
information,  to  come  before  him  or  them,  when  and  where  he  or 
they  may  direct,  to  testify  by  oath  or  affirmation,  such  acts,  mat- 
ters or  things,  as  it  may  be  necessary  for  the  said  judge,  chancellor, 
or  justice,  or  commissioners,  to  investigate,  in  the  execution  of 
the  trust,  duties,  and  services,  required  of  them  by  this  act,  and 
to  bring  with  him  or  them,  all  such  patents,  surveys,  maps,  re- 
cords, deeds,  or  other  writings,  as  may  be  necessary  to  be  exam- 
ined by  said  judge,  chancellor,  or  justice,  or  commissioners. — 
How.  &  H.  355. 

§  8.  The  commissioners  shall  transmit  the  writing  contain- 
ing their  appointment,  and  oath  or  affirmation,  properly  cer- 
tified by  the  person  administering  the  same;  and  the  map,  and 
field-book,  and  also  their  accounts,  to  the  judge,  chancellor,  or 
justice,  from  whom  they  received  their  appointment,  or  in  case 
of  his  death,  resignation,  or  removal,  then  to  any  other  judge, 
chancellor  or  justice,  of  the  same  court,  who,  after  inspecting  the 


438  PARTITION.  [CH.  LXI. 

same,  shall  order  the  said  instruments,  excepting  the  account  of 
the  expenses,  to  be  recorded  in  the  clerk's  office  of  the  circuit 
court,  or  in  the  clerk's  office  of  the  county  court,  where  the  lands 
lie,  which  shall  be  good  evidence  of  such  partition;  which  parti- 
tion shall  be  as  valid  and  effectual  in  law  to  divide  and  separate 
the  said  lands,  as  if  the  same  had  been  made  on  writs  of  partition, 
according  to  the  course  of  the  common  law.    How.  &  H.  356. 

§  9.  The  said  judge,  chancellor,  or  justice,  shall  be  allowed 
for  the  services  required  by  this  act,  at  the  rate  of  two  dollars  and 
fifty  cents  per  day  each,  while  employed  in  the  said  business; 
and  the  said  commissioners  at  the  rate  of  two  dollars  per  day  each, 
and  the  said  surveyor  at  the  rate  of  four  dollars  a  day,  and  the 
chain-bearers  and  witnesses  at  the  rate  of  one  dollar  per  day  each, 
while  employed  or  attending  on  said  business.  How.  &  H. 
866. 

§  10.  In  case  of  the  death,  resignation,  neglect,  or  refusal,  of 
any  of  the  commissioners  appointed  by  virtue  of  this  act,  before 
the  trust,  duties  and  services,  hereby  required  of  them,  shall  be 
completed,  then  the  said  judge,  chancellor,  or  justice,  or  in  case 
of  his  death,  resignation  or  removal,  any  other  such  judge,  chan- 
cellor, or  justice,  shall  by  writing,  under  his  hand  and  seal,  ap- 
point another  commissioner  or  commissioners,  who  shall  be  vest- 
ed with  the  like  powers  and  authority  as  if  he  or  they  had  been 
originally  appointed.     How.  &  H.  356. 

§  11.  After  the  said  judge,  chancellor,  or  justice,  shall  .have 
ascertained  the  whole  expense  of  such  partition,  he  shall  divide 
the  same  equally  according  to  the  several  parts  or  shares,  which 
shall  be  paid  by  the  persons  to  whom  such  shares  were  allotted, 
their  heirs  or  assigns,  within  four  weeks  after  the  same  shall  be 
ascertained ;  or  in  default  of  payment  of  such  expense,  the  said 
judge,  chancellor,  or  justice,  is  hereby  authorized,  where  no  oth- 
er property  is  to  be  found,  to  direct  a  sale  to  be  made  by  the  com- 
missioners, of  so  much  of  those  parts  or  shares  deficient  in  paying 
the  expense,  as  will  be  sufficient  to  pay  their  respective  propor- 
tions thereof,  together  with  the  expenses  accruing  on  such  sale ; 
and  the  said  judge,  chancellor,  or  justice,  shall  direct  the  same  to 
be  sold  by  the  said  commissioners,  at  public  auction,  to  the  high- 


CH.  LXI.]  PARTITION.  439 

est  bidder,  whereof  four  weeks'  notice  siiall  be  previously  given, 
in  one  of  tiie  said  newspapers,  and  at  three  of  tiie  most  public 
places  in  the  county  in  which  the  lands  lie :  and  the  said  com- 
missioners' deed  to  the  purchaser  shall  pass  as  good  a  title  for  the 
separate  enjoyment  of  the  same,  as  if  all  the  owners  and  claim- 
ants of  shares  of  the  entire  tract  divided  had  joined  therein. — 
How.  &H.  356. 

§  12.  If  partition  be  not  made  between  joint  tenants,  the  parts 
of  those  who  die  first  shall  not  accrue  to  the  survivors,  but  shall 
descend  or  pass  by  devise,  and  shall  be  subject  to  debts,  charges, 
curtesy  or  dower,  or  transmissible  to  executors  or  administrators, 
and  be  considered,  to  every  other  intent  and  purpose,  in  the  same 
manner  as  if  such  deceased  joint  tenants  had  been  tenants  in 
common.    How.  &  H.  357. 

§  13.  Any  coparcener,  joint  tenant,  or  tenant  in  common,  who 
shall  be  dissatisfied  with  any  partition  made  according  to  the  pro- 
visions of  this  act,  may  have  the  same  re-examined  by  bill  in 
equity  in  the  superior  court  of  chancery,  and  the  court,  on  the 
final  hearing  of  the  cause,  may  either  affirm  the  proceedings  of 
the  commissioners,  or  decree  a  new  partition  by  other  commission- 
ers, in  like  manner,  if  it  shall  satisfactorily  appear  that  injustice 
was  done  to  the  complainant  in  such  cause.    How.  &  H.  357. 

§  14.  Nothing  herein  shall  be  construed  so  as  to  injure,  preju- 
dice, defeat  or  destroy,  the  estate,  right  or  title,  of  any  person  or 
persons,  claiming  such  tract  or  tracts  of  land,  or  any  part  thereof, 
or  any  thing  therein  by  title,  under  any  other  person  or  persons, 
or  by  title  paramount  to  the  title  of  such  coparceners,  joint  tenants, 
or  tenants  in  common,  among  whom  partition  may  have  been 
made.    How.  &  H.  357. 

§  15.  The  powers  and  jurisdiction  heretofore  invested  in  the 
presiding  justices  of  the  several  county  courts  of  this  state,  by  an 
act  entitled  an  "An  act  concerning  the  partition  of  land  held  by 
coparceners,  joint  tenants,  and  tenants  in  common,"  passed  the 
10th  June,  1832,  shall  pertain  to  and  be  invested  in  the  judges 
of  probate  of  the  several  counties  of  this  state,  and  all  proceedings 
and  matters  which  by  virtue  of  said  act  were  required  to  be  re- 
corded in  the  clerk's  office  of  the  county  court,  shall  be  regularly 


440  PARTITION.  [CH.  LXl. 

recorded  in  ttie  office  of  the  clerk  of  the  probate  court  of  the 
counties  respectively  where  such  proceedings  shall  be  had ;  and 
all  business  which  was  pending  and  unfinished  before  such  jus- 
tices of  the  county  court,  at  the  time  when  the  said  court  and  its 
officers  were  superseded,  shall  be,  and  the  same  shall  be  deemed 
to  have  been  regularly  transferred  to  the  cognizance  and  jurisdic- 
tion of  the  judges  of  probate  of  the  respective  counties,  for  final 
adjudication.    How.  &  H.  471. 

§  16.  Whenever  it  shall  be  represented,  to  the  satisfaction  of 
any  probate  court  of  any  county  of  this  state,  by  the  parties  in- 
terested in  any  lands  held  in  joint  tenancy,  in  common  or  co- 
parcenary, that  an  equal  division  thereof  cannot  be  made,  on 
account  of  the  nature  and  situation  thereof,  such  court  shall  have 
power  to  order  and  direct  a  sale  thereof,  upon  such  terms  as  may 
appear  reasonable,  and  that  the  proceeds  thereof  be  divided  in 
equal  parts  to  and  among  the  parties  interested  therein,  and  the 
legal  representatives  of  a  deceased  party,  according  to  their  re- 
spective interests  therein,  subject  to  all  the  rules  prescribed  in  the 
act  entitled  "An  act  concerning  the  partition  of  lands  held  by 
coparceners,  joint  tenants,  and  tenants  in  common,"  passed  16th 
of  June,  1822.    Acts  1833,  2d  ses.  ch.  9,  sec.  1. 


OB 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  441 


CHAPTER  LXII. 

JUDGE  AND  CLERK  OF  PROBATE  COURT. 

§  I.  There  shall  be  established  in  each  county  of  this  state,  a 
Court  of  Probates,  to  be  styled  "  The  Probate  Court  of  the  coun- 
ty of ,"  with  such  jurisdiction  to  said  courts  within  their 

respective  counties  as  is  prescribed  to  them  in  the  aforesaid  arti- 
cle of  the  Constitution.    Post.  sec.  25 — ante.  p.  8. 

§  2.  The  Judge  of  Probate  and  clerk  for  such  county,  shall  be 
chosen  by  the  electors  of  their  county,  qualified  to  vote  for  mem- 
bers of  the  legislature,  at  the  place  for  holding  the  general  elec- 
tions in  such  county,  and  shall  hold  their  offices  for  the  term 
prescribed  by  the  constitution,  unless  sooner  removed  for  mal- 
conduct  in  office,  or  other  disqualifying  cause  provided  for  by 
the  constitution. 

§  3.  Before  entering  upon  the  duties  of  their  respective  offices, 
the  judge  of  probate  and  clerk  of  said  court  in  every  county  of 
this  state,  shall  take  and  subscribe  the  oath  prescribed  in  the 
constitution  before  any  judge,  justice  of  the  peace,  or  other  officer 
lawfully  authorised  to  administer  an  oath,  which  oath,  when 
thus  taken  and  subscribed,  shall  be  recorded  on  the  minutes  of 
the  court.  On  failure  or  refusal  to  take  said  oath  within  twenty 
days  after  his  election,  any  judge  of  probate  or  clerk  thus  failing 
or  refusing,  shall  be  deemed  disqualified  under  the  said  election, 
to  hold  the  office  for  which  he  was  elected,  and  the  vacancy  shall 
be  filled  in  the  same  manner  with  other  vacancies  in  said  offices; 
and  the  clerk  of  the  court  of  probata  of  each  county  in  this  state, 
shall,  before  he  enters  upon  the  duties  of  his  office,  enter  into 
bond  payable  to  the  governor  of  the  state  of  Mississippi,  and  his 
successors  in  office,  in  the  same  manner,  in  the  same  penalty, 
and  with  the  same  condition  as  is  required  of  registers  of  orphans' 
courts,  by  the  fourth  section  of  the  ninth  chapter  of  the  Revised 
Code :  which  bond  shall  be  recorded  and  filed  as  is  prescribed  by 
said  section.  Post.  sec.  31. 
56 


442  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

§  4.  The  court  of  probate  in  each  county  shall  procure  a  seal 
for  said  court,  which  shall  be  kept  Ipy  the  clerk  thereof,  and  shall 
be  affixed  to  all  letters  testamentary,  of  administration  and  guar- 
dianship ;  to  all  certificates  of  the  court  or  of  the  clerk,  and  to  ev- 
ery writ  and  process  of  every  kind  issued  from  the  court. 

§  5.  All  vacancies,  either  in  the  office  of  judge  or  clerk  of 
said  court,  shall  be  filled  by  election  at  the  several  precincts  of 
the  county,  to  be  held  at  such  time  as  the  board  of  county  police 
may  prescribe,  and  on  such  public  notice  as  may  be  provided  for 
by  law. 

§  6.  It  shall  be  the  duty  of  the  present  register  of  the  orphans' 
court  to  deliver  over  when  demanded,  to  the  clerks  of  the  courts 
of  probate,  books,  records,  papers,  and  all  other  matters  pertain- 
ing to  the  office  of  register,  and  on  failure  or  refusal  so  to  do,  any 
register  so  offending,  shall  be  fined  in  the  sum  of  one  thousand 
dollars,  to  be  collected  before  any  court  of  competent  jurisdiction, 
and  paid  into  the  county  treasury  for  county  purposes.    (Obsolete.) 

§  7.  The  judges  of  probate  and  clerks  of  the  courts  of  probate, 
shall  receive  the  same  compensation  and  perquisites  as  are  allow- 
ed to  the  judges  of  probate  and  registers  of  the  orphans'  court  in 
the  respective  counties. 

§  8.  In  case  the  clerk  shall  be  at  any  time  unable,  from  sick- 
,  ness  or  other  unavoidable  causes,  to  attend  said  court,  it  shall 
be  lawful  for  the  judge  of  probate  to  appoint  a  person  to  act  as 
clerk  pro  tempore,  who  shall  take  an  oath  faithfully  to  discharge 
all  the  duties  of  his  office;  and  for  services  rendered  by  the  said 
clerk,  he  shall  be  entitled  to  the  fees  allowed  by  law  to  the  clerk 
of  said  court. 

§  9.  The  court  of  probate  shall  make  allowances  of  all  sums 
necessary  for  furnishing  the  clerk's  office  with  book-presses 
and  tables,  to  be  paid  out  of  the  county  treasury  of  the  proper 
county. 

§  10.  All  deeds,  mortgages,  and  other  instruments  of  writing, 
now  required  by  law  to  be  recorded  in  the  county  courts  of  this 
state,  shall  hereafter  be  recorded  in  the  co^irts  of  probate  of  the 
respective  counties,  and  the  clerks  of  said  courts  of  probate  are 
authorised  and  required  to  do  and  perform  all  acts  in  relaticwi 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  443 

thereto,  which  are  now  authorised  and  required  to  be  done  by  the 
clerks  of  said  county  courts.  The  clerks  of  the  several  county 
courts  shall  deliver  over  to  the  clerks  of  the  courts  of  probate  of 
the  respective  counties,  all  books,  records,  and  papers,  belonging 
to  said  county  courts,  so  far  as  they  appertain  to  the  jurisdiction  of 
said  court  of  probate  under  the  constitution  and  laws  of  this  state, 
which  said  books,  records,  and  papers,  shall  be  kept  and  preserved 
by  said  clerks  of  the  courts  of  probate,  and  they  are  authorised  and 
required  to  do  and  perform  all  acts  in  relation  thereto,  which  are 
now  authorised  and  required  to  be  done  by  said  clerks  of  the  coun- 
ty courts.  The  clerks  of  the  courts  of  probate  are  hereby  authori- 
sed and  required  to  do  and  perform  all  acts  which  are  now  authori- 
sed and  required  to  be  done  by  the  clerks  of  the  county  courts  and 
registers  of  the  orphans'  court,  not  inconsistent  with  the  constitu- 
tion and  laws  now  in  force  in  this  state. 

§  11.  All  the  suits,  causes,  and  proceedings  whatever,  which 
may  be  pending  in  either  the  county  and  probate  court,  or  the 
probate  or  orphans'  court,  in  relation  to  the  matters  properly  be- 
longing to  the  probate  court,  under  the  constitution,  at  the  time 
this  act  takes  effect,  shall  be,  and  the  same  are  hereby  transferred 
to  the  probate  court  of  the  proper  county,  there  to  be  proceeded 
in  and  conducted  according  to  law. 

§  12.  So  much  of  the  act  entitled  "An  act  to  reduce  into  one 
the  several  acts  concerning  last  wills  and  testaments,  the  duties  of 
executors,  administrators  and  guardians,  and  the  rights  of  orphans 
and  other  representatives  of  deceased  persons,"  passed  November 
twenty-sixth,  one  thousand  eight  hundred  and  twenty-one,  as  is 
now  in  force,  and  all  subsequent  existing  acts  in  relation  to  the 
duties,  powers,  and  jurisdiction  of  the  orphans'  court,  be,  and  the 
same  are  hereby  extended  to  the  courts  of  probate,  so  far  as  the 
same  are  not  repugnant  to  the  constitution,  or  do  not  conflict  with 
the  provisions  of  this  act.    Ante.  sec.  1. 

§  13.  All  the  powers  and  jurisdiction  heretofore  conferred  up- 
on the  county  and  probate  courts  of  this  state,  and  which  have 
not  been  expressly  repealed,  and  are  not  repugnant  to  the  consti- 
tution of  this  state,  be,  and  the  same  are  hereby  conferred  upon 
the  several  courts  oi  probate  within  this  state,  so  far  as  the  same 
relate  to  orphans'  business,  or  testamentary  matters,  and  that  all 


444  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

civil  suits  which  were  pending  in  any  of  the  county  courts  and 
undetermined,  shall  be  transferred  to  the  circuit  courts  of  the  pro- 
per county,  for  final  trial.    Sec.  1. 

§  14.  The  powers  and  jurisdiction  heretofore  invested  in  the 
presiding  justices  of  the  several  county  courts  of  this  state,  by 
an  act  entitled  "An  act  concerning  the  partition  of  land  held  by 
coparceners,  joint  tenants,  and  tenants  in  common,"  passed  the 
10th  day  of  June,  1832,  shall  pertain  to,  and  be  invested  in,  the 
judges  of  probate  of  the  several  counties  of  this  state,  and  that 
all  matters  and  proceedings,  which  by  virtue  of  said  act  were  re- 
quired to  be  recorded  in  the  clerk's  office  of  the  county  court, 
shall  be  regularly  recorded  in  the  office  of  the  clerk  of  the  probate 
court  of  the  counties  respectively,  where  such  proceedings  shall 
be  had ;  and  all  business  which  was  pending  and  unfinished  be- 
fore such  justices  of  the  county  court  at  the  time  when  the  said 
court  and  its  officers  were  superseded,  shall  be,  and  the  same  shall 
be  deemed  to  have  been  regularly  transferred  to  the  cognizance 
and  jurisdiction  of  the  judges  of  probate  of  the  respective  counties 
for  final  adjudication.     Ante.  p.  434. 

§  16.  The  clerks  of  the  said  courts  shall  have  power  to  appoint 
deputies,  with  the  approbation  of  their  several  courts,  who  shall 
take  the  oath  of  office ;  and,  thereupon,  such  deputies  shall  have 
full  power  and  authority  to  do  and  perform  all  the  several  acts  and 
duties  enjoined  upon  their  principals.  And  the  clerks  of  said 
courts  shall  keep  their  offices  at  the  court-houses  of  the  counties 
in  which  they  are,  or  may  be  clerks.  But,  in  all  cases  where  offi- 
ces have  not  been  provided  for  the  clerks  of  the  said  courts,  such 
clerks  may  keep  the  records,  books  and  papers,  belonging  to  their 
offices,  at  such  places,  as  the  justices  of  the  county  court  shall 
think  fit,  and  so  enter  of  record. 

Whenever  the  office  of  clerk  of  any  county  court  shall  become 
vacant  by  any  cause  whatsoever,  the  records,  papers,  books,  sta- 
tionery, and  every  thing  belonging  or  appertaining  to  said  office, 
shall  be  demanded,  delivered  over,  and  received  in  the  manner, 
and  (in  case  of  refusal  or  detention)  under  the  penalties  prescrib- 
ed in  the  14th  section  of  the  act  entitled  "An  act  to  reduce  into 
one  the  several  acts,  and  parts  of  acts,  concerning  the  establish- 
ment, jurisdiction,  and  powers  of  the  superior  courts  of  law." 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  445 

If  any  clerk  of  a  county  court  shall  willingly  make  any  false 
entry,  or  raze  a  letter,  or  change  any  record  in  his  keeping, 
belonging  to  his  office,  every  such  clerk,  so  offending,  shall,  on 
conviction  thereof,  be  fined  and  imprisoned  at  the  discretion  of 
the  court,  and  shall  moreover  be  liable  to  the  action  of  the  party 
aggrieved. 

The  several  clerks  of  the  county  courts  in  this  state,  and  their 
deputies,  shall  be,  and  they  are  hereby,  empowered  to  administer 
oaths  or  affirmations,  in  all  cases  wherein  an  affidavit  is  necessary 
as  the  foundation  of  any  official  act  to  be  performed  by  any  such 
clerk ;  which  affidavit  shall  be  filed,  and  shall,  in  all  respects,  be 
as  effectual  as  if  the  oath  thereto  had  been  administered  by  a  jus- 
tice of  the  peace.  And  if  any  person  sworn  by  any  such  clerk  or 
his  deputy,  by  virtue  of  this  act,  shall  give  any  evidence,  under 
such  circumstances  as  would  have  constituted  the  same  to  be  per- 
jury, if  done  in  presence  of  a  court  of  record,  the  same  shall  be 
deemed  perjury  to  all  intents  and  purposes. 

§  16.  It  shall  be  the  duty  of  the  judge  of  probate  of  each  coun- 
ty in  this  state,  to  hold  a  court,  at  the  court-house  of  his  county, 
on  the  fourth  Monday  in  every  month,  which  may  continue  for 
four  days,  if  the  business  to  be  done  cannot  be  sooner  finished ; 
and  the  sheriff  or  coroner  (as  the  case  may  require)  of  the  coun- 
ty shall  attend  said  court,  and  shall  serve  all  summons  or  process 
to  him  directed,  from  the  orphans'  court  of  his  or  any  other 
county  .within  the  state,  and  shall  make  returns  thereof,  accord- 
ing to  the  tenor  of  the  same ;  and  on  failure  he  shall  be  liable  to 
be  proceeded  against,  in  the  same  manner  as  for  the  like  failure 
in  other  cases.    Post.  sec.  29. 

The  judge  of  probate  in  each  county  shall  be,  and  he  is  here- 
by authorised,  as  often  as  he  may  deem  it  necessary,  to  hold  a 
special  term  of  the  orphans'  court  of  his  county,  on  ten  days'  no- 
tice being  given,  by  advertisement,  at  three  public  places  in  the 
county,  (of  which  the  court-house  shall  be  one;)  and  at  such  term, 
no  other  business  shall  be  transacted,  heard  or  determined  other 
than  that  which  shall  be  particularly  mentioned  in  the  advertise- 
ment aforesaid. 

§  17.  The  orphan's  court  in  each  county  shall  in  all  cases  have 
power  to  issue  a  summons  for  any  person  concerned  in  the  affairs 


446  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

of  a  deceased  person,  or  for  any  witness  or  other  person  whose  ap- 
pearance in  the  said  court,  for  any  purpose,  shall  be  deemed  ne- 
cessary or  proper,  and  the  said  summons  shall  be  returnable,  at 
the  discretion  of  the  court,  at  some  regular  term  thereof;  and  if  it 
be  necessary  or  proper  to  enforce  the  appearance  of  the  party,  the 
court,  on  the  return  of  "summoned"  and  failure  to  appear,  may 
issue  an  attachment ;  and  when  the  party  shall  appear,  or  be 
brought  in  thereon,  may  fine  him  or  her,  not  exceeding  fifty  dol- 
lars ;  and  if  a  witness  before  the  court  shall  refuse  to  give  evidence, 
the  court  may  commit  him  or  her  to  the  custody  of  the  sheriff  of 
his  or  her  county,  (or  coroner,  as  the  case  may  require,)  there  to  re- 
main until  he  or  she  give  evidence,  or  be  discharged  according  to 
law:  and  such  witness  shall  moreover  be  liable  to  the  action  of 
the  party,  who  may  sustain  any  damage  by  reason  of  his  or  her 
refusing  to  give  evidence  as  aforesaid. 

§  18.  The  appointment  of  an  attorney  and  counsellor  at  law 
to  the  office  of  judge  of  probate,  shall  not  deprive  such  attorney 
and  counsellor  at  law  of  the  right  to  practise  in  his  profession  in 
any  court  of  law  or  equity  in  this  state,  except  the  court  of  which 
he  is  judge :  Provided,  that  he  shall  not  be  at  liberty  to  prose- 
cute or  defend,  or  in  any  manner  advise  either  party,  in  any  mat- 
ter, cause  or  controversy  which  he  may  have  decided,  and  on  which 
an  appeal  or  other  proceedings  are  had  in  any  other  court  in  the 
state.  And  if  any  judge  of  probate  shall  aid,  abet,  counsel  or  ad- 
vise in  any  such  matter,  cause  or  controversy,  he  shall  be  deem- 
ed guilty  of  a  high  misdemeanor,  and  may  for  the  same  be  remo- 
ved from  office.    Ante.  p.  16. 

Whenever  there  shall  be  so  near  a  relation  between  any  de- 
ceased person  and  the  judge  of  probate  of  the  county  in  which 
letters  testamentary  or  of  administration  have  been  or  ought  to  be 
granted,  according  to  the  provisions  of  this  act,  as  between  father 
and  son,  by  nature  or  marriage,  or  brother  in  like  kind,  or  when- 
ever a  judge  of  probate  shall  be  interested  in  the  estate  of  any  de- 
ceased person,  as  being  legatee,  devisee  or  distributee,  such  judge 
shall  be  disqualified  to  act  in  the  settlement  of  such  deceased  per- 
son's estate,  and  the  cognizance  thereof  shall  appertain  to  the 
judge  of  probate  in  an  adjoining  county,  and  who  resides  nearest 
to  the  residence  of  the  judge  so  disqualified ;   and  the  judge  so 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  447 

residing  in  an  adjoining  county,  shall  in  every  such  case  have  full 
authority  to  proceed  to  a  final  settlement  of  the  estate  of  such  de- 
ceased person,  and  shall  cause  his  proceedings  therein  to  be  re- 
corded in  the  register's  office  of  the  county  from  which  such  case 
shall  have  been  removed.     -4wfe.  p.  16.  'cr;', 

§  19.  Any  person  who  has  been,  is,  or  may  hereafter  be,  elect- 
ed to  the  office  of  judge  of  the  probate  court  of  any  county  in 
this  state,  and  who  shall,  at  the  time  of  his  election,  be  execu- 
tor, administrator,  or  guardian,  in  such  court,  and  not  having 
settled  his  final  account  thereof,  shall  be  disqualified  from  act- 
ing as  judge  of  probate  in  such  cases ;  but  it  shall  be  his  duty 
to  apply  to  the  probate  judge  of  an  adjoining  county,  who  shall 
have  full  authority  to  proceed  therein,  and  shall  cause  his  pro- 
ceedings thereon  to  be  recorded  in  the  clerk's  office  of  the  pro- 
bate court  of  the  county  from  which  the  same  shall  have  been 
removed.     Ante.  p.  16. 

§  20.  And  it  shall  be  the  duty  of  said  register  to  keep  and  pre- 
serve all  records,  files,  papers  and  proceedings  of  the  said  court ; 
to  record  all  last  wills  and  testaments  duly  proved  and  approv- 
ed ;  all  accounts  finally  allowed ;  all  inventories  and  appraise- 
ments duly  made  and  sworn  to ;  to  issue  all  citations,  subpoenas 
and  other  process  as  issue  of  course ;  and  all  such  as  are  directed 
by  the  court  in  term  time,  or  the  judge  in  vacation ;  and  to  do  and 
perform  all  those  things  that  appertain  to  the  office  of  a  register 
of  the  said  orphans'  court.  And  the  said  register's  office  shall  be 
under  the  direction  of  the  court  in  term  time,  and  of  the  judge  in 
vacation. 

§  21.  The  board  of  police  of  Hinds  county  is  authorised  to 
appoint  one  or  more  fit  person  or  persons  to  transcribe,  in  large, 
well  bound  books,  such  of  the  records  of  deeds  of  conveyance, 
mortgage,  trusts,  and  to  uses,  as,  in  the  opinion  of  said  board,  are 
in  danger  of  loss  or  destruction,  by  reason  of  their  present  condi- 
tion, and  thereupon  to  make  out  in  a  like  book  or  books,  a  general 
index  to  all  the  deeds  of  conveyance,  &c.,  records  for  said  county 
since  the  commencement,  referring  to  each  deed  or  instrument 
by  the  grantor  or  alienor ;  and  also  by  the  name  of  the  grantee,  or 
alienee,  or  trustee,  and  that  such  transcript  of  the  records,  when 
made  and  collected  to  the  satisfaction  of  the  said  board,  or  of  the 


448  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

judge  of  said  probate  court,  shall  have  all  the  force  and  effect  of 
the  original  record. 

The  said  board  of  police  be  authorised  to  appropriate  out  of  the 
said  moneys  of  said  county,  a  sufficient  compensation  for  the  ser- 
vices aforesaid,  as  well  as  for  the  books  that  shall  be  needed. 

The  said  board  of  police  shall  have  power  to  appropriate  and 
order  to  be  paid  out  of  the  moneys  of  said  county,  a  just  compen- 
sation to  the  clerk  of  the  said  probate  court,  for  making,  or  causing 
to  be  made,  a  suitable  general  index  to  the  minutes,  orders,  pro- 
ceedings, records,  files,  and  proceedings  of  and  concerning  dece- 
dents' estates,  and  the  property  and  estates  of  the  minors,  idiots 
and  lunatics  therein,  under  the  name  of  each  decedent,  ward, 
idiot  or  lunatic,  respectively,  shall  appear  in  one  place  of  the  in- 
dex, successive  references  to  such  minutes,  orders,  &c. ;  such  in- 
dex, when  completed,  to  be  subject  to  the  approval  of  said  board 
of  police,  or  the  judge  of  said  probate  court. 

The  provisions  of  this  act  be,.and  the  same  are  hereby  extend- 
ed to  the  county  of  Yazoo. 

§  22.  All  courts  of  probate  shall  be  held  in  the  several  coun- 
ties laid  off  and  organized  at  this  session  of  the  legislature,  four 
terms  in  each  and  every  year,  at  the  place  of  holding  circuit  courts 
in  the  respective  counties,  on  the  first  Mondays  of  April,  July, 
October  and  January,  in  each  and  every  year,  and  may,  at  each 
term  thereof,  continue  four  judicial  days,  if  business  so  long  re- 
quire, and  no  longer.    Sec.  24,  16,  29. 

§  23.  It  shall  be  lawful,  from  and  after  the  passage  of  this 
act,  for  the  judge  of  the  probate  court  of  said  county  to  hold  his 
courts  in  the  office  built  by  said  county  for  the  use  of  the  probate 
court. 

§  24.  The  court  of  probate  shall  be  holden,  in  the  counties 
hereinafter  named,  at  the  times  hereinafter  mentioned : — in  the 
county  of  Attala,  on  the  first  Monday  of  each  and  every  month, 
and  continue  two  days,  if  business  so  long  require,  and  no  longer; 
in  the  county  of  Bolivar,  on  the  third  Mondays  of  January,  April, 
July  and  October,  and  may  continue  two  days,  if  business  so  long 
require ;  in  the  county  of  Carroll,  on  the  first  Monday  in  each  and 
every  month,  and  may  continue  three  days,  if  business  so  long 
require ;  in  the  county  of  Choctaw,  on  the  fourth  Monday  in  each 


CH.  LXIl.]  PROBATE  JUDGE  AND  CLERK.  449 

and  every  month,  and  may  continue  three  days,  if  business  so 
long  require;  in  the  county  of  Clarke,  on  the  first  Mondays  of 
December,  March,  June  and  September^  and  m^y  continue  four 
days,  if  business  so  long  require;  in  the  county  of  Coahoma,  on 
the  second  Mondays  of  January,  April,  July  and  October,  and 
may  continue  two  days,  if  business  so  long  require ;  in  the  county 
of  De  Soto,  on  the  first  Monday  of  each  and  every  month,  and 
may  continue  two  days,  if  business  so  long  require ;  in  the  county 
of  Lafayette,  on  the  second  Monday  in  each  and  every  month, 
and  may  continue  two  days,  if  business  so  long  require;  in  the 
county  of  Marshall,  on  the  fourth  Monday  in  each  and  every 
month,  and  may  continue  three  days,  if  business  so  long  require; 
in  the  county  of  Noxubee,  on  the  first  Monday  in  each  and  every 
month,  and  may  continue  two  days,  if  business  so  long  require; 
in  the  county  of  Neshoba,  on  the  third  Monday  in  each  and  eve- 
ry month,  and  may  continue  one  day,  if  business  so  long  require; 
in  the  county  of  Oktibbeha,  on  the  fourth  Monday  of  each  and 
every  month,  and  may  continue  three  days,  if  business  so  long 
require;  in  the  county  of  Ponola,  on  the  third  Monday  of  each 
and  every  month,  and  may  continue  two  days,  if  business  so  long 
require ;  in  the  county  of  Tallahatchee,  on  the  second  Monday 
in  each  and  every  month,  and  may  continue  three  days,  if  busi- 
ness so  long  require;  in  the  county  of  Tippah,  on  the  first  Mon- 
day of  each  and  every  month,  and  may  continue  two  days,  if  bu- 
siness so  long  require ;  in  the  county  of  Tunica,  on  the  first 
Mondays  in  the  months  of  January,  April,  Jufy  and  October,  and 
may  continue  two  days,  if  business  so  long  require;  in  the  coun- 
ty of  Tishemingo,  on  the  first  Monday  in  each  and  every  month, 
and  may  continue  two  days,  if  business  so  long  require;  in  the 
county  of  Winston,  on  the  first  Monday  in  each  and  every  month, 
and  may  continue  one  day,  if  business  so  long  require ;  in  the 
county  of  Yallabusha,  on  the  first  Monday  in  each  and  every 
month,  and  may  continue  three  days,  if  business  so  long  require ; 
in  the  county  of  Leake,  on  the  second  Monday  in  each  and  every 
month,  and  may  continue  one  day,  if  business  so  long  require ; 
in  the  county  of  Lowndes,  on  the  first  Monday  in  each  and  every 
month,  and  may  continue  six  days,  if  business  so  long  require, 
57 


450  PROBATE  JUDGE  AND  CLERK.  [oH.  LXII. 

and  no  longer ;  in  the  county  of  Lauderdale,  on  the  third  Monday 
in  each  and  every  month,  and  may  continue  three  days,  if  busi- 
ness so  long  require.     Sec,  30,  22,  16. 

§  25.  The  powers  belonging  to  the  county  and  probate  courts, 
prior  to  the  constitution  of  1832,  were  transferred  by  act  of  1833, 
to  the  probate  court,  and  are  set  forth  in  the  act  of  1 824,  as  fol- 
lows: 

That  the  judge  of  probate  and  the  justices  of  the  county  courts 
now  in  commission,  or  any  two  of  them,  shall  hold  county  and 
probate  courts,  in' their  respective  counties,  four  times  each  year, 
in  the  same  manner  and  at  the  time  specified  by  law.  And  it 
shall  be  the  duty  of  the  judge  of  probate  of  the  several  counties 
in  this  state,  to  report  all  his  judicial  proceedings  to  the  county 
and  probate  court  of  his  county,  on  the  first  day  of  every  term 
thereof :  and  it  shall  be  the  duty  of  the  said  county  and  probate 
court  to  examine  and  consider  all  such  proceedings  of  the  judge 
of  probate,  and  to  make  such  order  thereon  as  they  may  deem 
right  and  proper,  not  contrary  to  law.  And  the  judge  of  probate 
and  the  associate  justices  of  the  county  court  in  such  county,  shall 
be  entitled  to  receive  out  of  the  county  treasury  of  their  respec- 
tive counties,  the  sum  of  three  dollars  per  day  for  every  day  they 
may  actually  be  engaged  in  holding  any  regular  or  special  term 
of  said  county  and  probate  courts ;  and  the  judge  of  probate  shall 
receive  the  same  compensation  for  holding  his  regular  monthly 
orphans'  court.  And  the  clerks  of  the  county  courts  now  in  office 
shall  be  the  clerks  of  the  said  court. 

All  letters  of  administration,  letters  testamentary,  and  of  guar- 
dianship, which  may  be  granted  or  issued  by  the  judge  of  probate, 
at  any  other  time,  than  during  the  regular  sessions  of  the  county 
and  probate  courts,  shall  be  valid,  unless  on  motion  of  any  person 
or  persons  interested  therein,  the  county  and  probate  court  for 
good  cause  shown,  shall  revoke  the  same. 

No  allowance  shall  be  made  to  any  executor  or  adminstrator  for 
the  management  of  any  estate,  but  by  the  county  court  of  his 
county,  which  then,  on  the  final  settlement  of  such  estate,  shall 
not  be  less  than  one,  nor  more  than  ten  per  centum,  on  the  ap- 
praised value  thereof. 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  451 

Sections  4, 5, 6  and  9,  relate  to  civil  suits  and  other  matters  ex- 
clusively appertaining  to  the  county  court  proper. 
Section  7  has  reference  to  the  probate  court. 

§  26.  All  process,  orders  and  decrees  of  the  probate  court,  shall 
be  enforced,  executed  and  returned  in  the  same  manner,  and  un- 
der the  like  penalties  as  the  process,  orders  and  decrees  of  a 
circuit  court  of  the  state  are  enforced,  executed  and  returned. — 
Act,  1821,  Revised  Code,  chap.  9,  sec.  3.  See  ante.  p.  24,  sec.  10, 
act  1846— See  sec.  28. 

§  27.  The  perquisites  of  the  judge  and  clerk  of  probate  as  fixed 
by  act  of  1824,  and  the  act  of  1844  amendatory  thereof,  (slightly 
altered  by  the  act  of  1846,  hereto  annexed,)  are  as  follows: 

Judge  of  Probate. 

For  examining  and  allowing  each  claim  against  any  estate  of  a 
deceased  person,  12i 

For  examining,  reporting  and  stating  each  account  of  an  executor, 
administrator,  guardian  or  collector,  for  the  first  sheet     1  00 

Every  sheet  more  than  one,  37i 

For  each  order  for  advertising,  issuing  citations,  or  other  notice 
of  process,  50 

For  each  order  for  the  partition  of  real  estate  among  heirs  and 
devisees,  50 

For  each  order  for  the  appointment  of  commissioners,  on  the  rep- 
resentation of  an  estate  being  insolvent,  75 

Apportionment  of  an  insolvent  estate  among  creditors,       1  00 

Granting  letters  testamentary,  or  letters  of  administration  or  guar- 
dianship, 75 
Clerk  of  the  Probate  and  Police  Courts. 

For  like  services  performed  by  them,  the  same  fees  as  are  by  law 
allowed  to  the  clerks  of  the  circuit  court. 

For  recording  each  deed  or  other  conveyance,  for  each  hundred 
words,  10 

For  issuing  tavern  license  and  taking  bond,  1  00 

For  copy  of  tavern  rates  and  certificate  thereof,  50 

For  certifying  the  official  acts  of  a  justice  of  the  peace,  or  other 
certificate  with  seal,  37i 


452  PROBATE  JUDGE  AND  CLERK.  [CH.  LXIU 

For  registering  the  probate  of  any  will  or  testament,  and  for  let- 
ters testamentary  thereon,  1  00 
For  recording  a  will,  testament,  or  codicil,  for  every  hundred 

words,  10 

For  administering  oath  to  executors,  administrators  or  guardians, 

taking  bond  and  recording  the  same,  1  00 

For  recording  an  inventory,  appraisement,  or  account  of  execu- 
tors, administrators,  collectors  or  guardians,  for  every  hundred 
words,  10 

For  issuing  marriage  license,  taking  bond  and  recording  marriage 

certificate,  •     1  00 

For  making  up  final  record,  furnishing  copies  of  records,  trans- 
cripts, recording  deeds,  and  all  other  writing,  and  instruments 
required  by  law  to  be  recorded  and  copied,  or  of  which  any 
person  is  entitled  to  demand  or  receive  copies,  ten  cents  for 
each  hundred  words.     See  sec.  28. 

By  act  of  1846,  the  clerk  of  the  board  of  police,  (i.  e,  the  clerk 
of  probates,  sec.  31,^os^)  shall  receive  $1.50  per  day  during 
each  session  of  the  board  of  police,  and  court  of  probates,  in  the 
counties  of  Itawamba,  Scott,  Winston,  Choctaw,  and  Lawrence; 
and  the  clerk  of  probates  of  Jasper  county  shall  receive  $2  00  per 
day,  during  such  session. 

The  judges  of  probate  in  Itawamba,  Scott,  Lawrence,  Greene, 
Winston,  Perry,  Jones,  and  Covington  counties,  shall  receive 
$1.50  per  day,  and  of  Jasper  county  $2.00  per  day,  payable  out 
of  the  treasuries  of  their  respective  counties.  Session  acts,  1846, 
pp.  213,  214. 

By  same  act,  it  is  provided,  that  so  much  of  the  act  of  1844,  as 
reduced  the  fees  of  clerks  in  the  counties  of  Covington,  Wayne, 
Jones,  Clarke,  Greene,  Jackson,  Hancock,  Perry,  Marion,  Wash- 
ington, Adams,  Jefferson,  and  Rankin,  is  repealed,  and  the  fees 
authorised  before  the  act  of  1844,  are  (in  those  counties,)  re-estab- 
lished.    Session  acts,  1846,  p.  248. 

§  28.  By  act  of  1826,  it  is  made  lawful  for  the  clerk  of  any 
probate  court  to  issue  execution  for  the  costs  of  any  suit  or  pro- 
ceeding which  may  originate  in  said  court,  which  the  said  judge 
and  clerk  of  probate  may  by  law  be  entitled  to.  Act,  1826,  ch. 
66,  sec.  2. 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  453 

By  act  of  1833,  ch.  62,  sec.  7,  the  judges  and  clerks  of  probate 
are  allowed  the  same  compensation  and  perquisites  which  are  al- 
lowed to  the  judges  of  probates  and  registers  of  orphans'  courts, 
in  their  respective  counties.  See  ante.  sec.  27,  for  list  of  fees  and 
perquisites.  \ 

§  29.  Besides  the  duties  and  powers  of  a  judge  of  probate  un- 
der the  foregoing  provisions,  he  may  talie  proof  or  acknowledg- 
ment of  deeds  and  conveyance,  whether  the  land  be  within  or 
without  his  county.    How.  &  H.  368. 

He  may  solemnize  the  rites  of  matrimony  between  any  free 
persons,  in  this  state,  duly  licensed  according  to  law.    Ibid.  327. 

He  may  authorise  a  minister  of  the  gospel  in  term  time,  on  the 
production  of  his  credentials  of  ordination  and  communion,  to 
solemnize  the  rites  of  matrimony. 

He  has,  pro  tempore,  all  the  powers,  and  is  subject  to  all  the 
duties  of  the  trustees  of  schools  and  school  lands,  in  any  township 
where  the  inhabitants  fail  or  refuse  to  appoint  trustees  therefor. 
Acts  1842,  sec.  3,  ch.  17,  p.  132. 

He  must  be  present  when  the  jury  is  drawn  by  the  clerk  of  the 
circuit  court  and  sheriff  in  vacation,  when  the  same  has  been  o- 
mitted  in  term  time.    How.  &  H.  491. 

He  is  required  to  approve  or  disapprove  of  the  bonds  of  the 
sheriffs  in  the  several  counties,  for  the  collection  of  taxes.  Act 
1844,  ch.  18,  sec.  2.  p.  130. 

By  act  of  1841,  ch.  87,  p.  237,  the  judge  of  probate,  clerk  of  the 
circuit  court,  and  president  of  the  board  of  police  of  Holmes  coun- 
ty, are  authorised  to  contract  for  transcribing  certain  loose  papers, 
which  when  signed  by  the  judge  of  probates,  shall  have  the  force 
and  effect  of  a  record,  compensation  for  which  is  to  be  made  by 
the  board  of  police.    Act  1841,  ch.  87,  p.  237. 

§  30.  By  act  of  1841,  the  lime  of  holding  probate  court  in  Han- 
cock county,  is  made  the  first  Monday  in  January,  March,  May, 
July,  September,  and  November. 

And  by  act  of  1842,  fixes  the  time  of  holding  the  probate  court 
in  Lauderdale  county,  on  the  first  Monday  of  every  month ;  re- 
peals the  act  of  1830,  which  fixed  it  on  the  third  Monday  of  every 
month.     Act  of  1842,  ch.  89,  p.  217. 


454  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

By  the  same  act,  the  act  of  1830,  fixing  the  time  of  holding 
the  probate  court  in  Pike  county,  is  repealed.  Act  1842,  ch.  85, 
p.  214. 

By  the  same  act,  the  probate  court  of  Marion  county  is  directed 
to  be  held  on  the  third  Monday  of  March,  May,  July,  September, 
November  and  January,  and  to  continue  only  three  days.  Act  of 
1842,  ch.  100,  p.  229. 

The  same  act  directs  the  probate  court  of  Harrison  county  to  be 
held  four  times  a  year,  on  the  fourth  Mondays  of  February,  May, 
August  and  November,  and  may  continue  four  days  each  terra,  if 
business  so  long  require,  and  no  longer.  Act  of  1842,  chap.  81, 
p.  211. 

The  same  act  directs,  that  in  addition  to  the  terms,  now  provi- 
ded by  law,  for  holding  the  probate  court  of  Pontotoc  county,  it 
may  be  held  on  the  first  Monday  of  each  and  every  month,  if,  in 
the  opinion  of  the  judge  of  said  court  it  may  be  necessary.  IMd. 
sec.  4. 

The  terms  of  the  probate  court  aire  appointed  by  law  to  be  held 
in  the  county  of 
Adams — on  the  fourth  Monday  of  every,  and  may  continue  six 

days  in  the  months  of  December,  January,  February  and  March; 

four  days  in  the  months  of  April,  June,  October  and  November; 

and  two  days  in  the  months  of  May,  July,  August  &  September. 

Act  of  1828. 
Amite — on  the  fourth  Monday  of  every  month,  and  may  contin- 
ue four  days.    Act  of  1836. 
Attala — on  the  first  Monday  of  every  month,  and  may  continue 

two  days.    Acts,  1838. 
Bolivar — on  the  first  Monday  of  every  month,  and  may  continue 

two  days.    Acts,  1838  and  1840. 
Carroll — on  the  first  Monday  of  every  month,  and  may  continue 

three  days.     Acts,  1838. 
Chickasaw — on  the  fourth  Mondays  of  January,  April,  July  and 

October,  and  may  continue  four  days.    Acts,  1836. 
Choctaw — on  the  4th  Monday  of  every  month,  and  may  continue 

three  days.    Acts,  1838. 
Claiborne — on  the  4th  Monday  of  every  month,  and  may  contin- 
ue four  days.     R.  Code,  c.  9,  sec.  5. 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  455 

Clarke — on  the  1st  Mondays  of  December,  March,  June  and  Sep- 
tember, and  may  continue  four  days.     Acts,  1838. 

Coahoma — on  the  4th  Mondays  of  January,  April,  July  and  Oc- 
tober, and  may  continue  two  days.    Acts,  1844. 

Copiah — on  the  3d  Monday  of  every  month,  and  may  continue 
two  days.    Acts,  1840. ' 

Covington — on  the  first  Mondays  of  January,  March,  May,  July, 
September  and  November,  and  may  continue  two  days.  Acts, 
1833. 

De  Soto— -on  the  first  Monday  of  every  month,  and  may  continue 
two  days.    Acts,  1838. 

Franklin — on  the  3d  Monday  of  every  month,  and  may  continue 
four  days.     R.  Code,  c.  9,  sec.  5.    Acts,  1830. 

Greene — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.     R.  Code,  c.  9,  sec.  5. 

Hancock — on  the  fourth  Mondays  of  January,  March,  May,  July, 
September  and  November,  and  may  continue  four  days.  Ibid. 
Acts,  1827. 

Harrison — on  the  fourth  Mondays  of  February,  May,  August  and 
November,  and  may  continue  four  days.     Acts,  1842. 

Hinds — on  the  4th  Monday  of  every  month,  and  may  continue 
six  days.     R.  Code,  ch.  9,  sec.  5.     Acts,  1844. 

Holmes — on  the  first  Monday  of  every  month,  and  may  continue 
four  days.     Acts,  1836. 

Itawamba — on  the  first  Monday  of  every  month,  and  may  contin- 
ue two  days.     Acts,  1842. 

Jackson — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.     R.  Code,  c.  9,  sec.  5. 

Jasper — on  the  first  Monday  of  every  month,  and  may  continue 
two  days.    Acts,  1844. 

Jefferson — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.     R.  Code,  ch.  9,  sec.  5. 

Jones — on  the  2d  Mondays  of  April  and  October,  and  may  con- 
tinue three  days.     Acts,  1844. 

Kemper — on  the  first  Monday  of  every  month,  and  may  continue 
four  days.    Acts,  1833  &  1844. 

Lafayette — on  the  3d  Monday  of  every  month,  and  may  continue 
two  days.     Acts,  1844, 


456  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

Lauderdale — on  the  first  Monday  of  every  month,  and  may  con- 
tinue three  days.     Acts,  1838  &  1842. 

Lawrence — on  the  4th  Monday  of  every  month,  and  may  contin- 
ue four  days.     R.  Code,  ch.  9,  sec.  5. 

Leake — on  the  2d  Monday  of  every  month,  and  may  continue  but 
one  day.     Acts,  1838. 

Lowndes — on  the  first  Monday  of  every  month,  and  may  contin- 
ue six  days.    Acts,  1838. 

Madison — on  the  4th  Monday  of  every  month,  and  may  continue 
six  days.     R.  Code,  ch.  9,  sec.  5.     Acts,  1844. 

Marion — on  the  third  Mondays  of  March,  May,  July,  September, 
November  and  January,  and  may  continue  three  days.  Acts, 
1842. 

Marshall — on  the  4th  Monday  of  every  month,  and  may  continue 
three  days.     Acts,  1838. 

Monroe — on  the  first  Mondays  of  January,  April,  July  and  Octo- 
ber, and  may  continue  four  days.  Rev.  Code,  ch.  9,  sec.  5. — 
Acts,  1838. 

Neshoba — on  the  3d  Monday  of  every  month,  and  may  continue 
one  day.     Ibid. 

Newton — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.     R.  Code,  ch.  9,  sec.  5. 

Noxubee — on  the  first  Monday  of  every  month,  and  may  contin- 
ue two  days.     Acts,  1838. 

Octibbeha — on  the  4th  Monday  of  every  month,  and  may  contin- 
ue three  days.     Ibid. 

Perry — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.     R.  Code,  ch.  9,  sec.  5, 

Pike — on  the  fourth  Monday  of  every  month,  and  may  continue 
four  days.     Ibid. 

Panola — on  the  3d  Monday  of  every  month,  and  may  continue 
two  days.     Acts,  1838. 

Pontotoc — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.  R.  Code,  ch.  9,  sec.  5.  In  addition  to  these,  terms 
may  be  held  on  the  first  Monday  of  every  month,  if  deemed 
necessary  by  the  judge.    Acts,  1842. 

Rankin — on  the  4th  Monday  of  every  month,  and  continue  four 
days.    R.  Code,  ch.  9,  sec.  5. 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  457 

Scott — on  the  first  Mondays  of  January,  April,  July  and  October, 
and  may  continue  four  days.    Acts,  1833. 

Simpson — on  the  2d  Mondays  of  February,  April,  June,  August 
and  October,  and  may  continue  two  days.     Hid. 

Smith — on  the  1st  Mondays  of  January,  April,  July  and  October, 
and  may  continue  four  days.    Ibid. 

Tallahatchie — on  the  2d  Monday  of  every  month,  and  may  con- 
tinue three  days.     Acts,  1838. 

Tippah — on  the  first  Monday  of  every  month,  and  may  continue 
two  days.     Ibid. 

Tishamingo — on  the  first  Monday  of  every  month,  and  may  con- 
tinue two  days.     Ibid. 

Tunica — on  the  1st  Mondays  of  January,  April,  July  and  October, 
and  may  continue  two  days.     Ibid. 

Warren — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.     R.  Code,  ch.  9,  sec.  5. 

Washington — on  the  4th  Monday  of  every  month,  and  may  con- 
•tinue  four  days.    Ibid. 

Wayne — on  the  3d  Mondays  of  January,  March,  May,  July,  Sep- 
tember and  November,  and  may  continue  four  days.    Ibid. 

Wilkinson — on  the  2d  Monday  of  every  month,  and  may  contin- 
ue four  days.    Acts,  1833. 

Winston — on  the  1st  Monday  of  every  month,  and  may  continue 
one  day  only.    Acts,  1838. 

Yallobusha — on  the  first  Monday  of  every  month,  and  may  con- 
tinue one  day  only.    Ibid. 

Yazoo — on  the  4th  Monday  of  every  month,  and  may  continue 
four  days.    R.  Code,  ch.  9,  sec.  5. 

.  §  31.  The  condition  of  the  bond  of  the  clerk  of  probates,  is 
faithfully  to  discharge  the  duties  of  his  office,  and  seasonably  to 
record  all  last  wills  and  testaments,  and  other  instruments  of  wri- 
ting required  by  law  to  be  recorded  in  his  office,  in  a  well  bound 
book  or  books  to  be  kept  for  that  purpose ;  and  safely  to  keep  all 
books,  papers,  records,  tables,  presses,  and  other  things  apper- 
taining to  his  office,  and  safely  deliver  such  books,  papers,  and 
other  things  to  his  successor  in  office ; — which  bond  shall  be  re- 
58 


458  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

recorded  in  the  office  of  the  Secretary  of  State.  And  the  said 
bond  shall  not  be  void  on  the  first  recovery,  but  may  be  put  in 
suit  and  prosecuted  from  time  to  time,  until  the  whole  sum  of  the 
penalty  (^,000,)  be  recovered.    Act  1840,  ch.  84. 

The  said  clerk  has  power,  and  is  required  by  law,  to  issue  mar- 
riage licenses ;  to  take  the  bond,  security,  and  receive  and  record 
the  testimonials  incident  thereto.  Acts,  1822 — R.  Code,  ch.  29, 
sec.  5.  To  issue  licenses  to  hawk  and  peddle  goods,  wares  and 
merchandise.  How.  &  H.  ch.  8,  sec.  21.  To  issue  licenses  to 
persons  dealing  in  gold  and  silver,  bank  notes,  and  bills  of  ex- 
change. Acts,  1841,  ch.  43.  To  record  the  marks  and  brands  of 
cattle.  How.  &  H.  201,  sec.  13.  To  keep  the  notarial  records  of 
notary  publics  and  other  officers,  after  the  expiration  of  their  term 
of  office.  Act  1822,  R.  Code,  ch.  47,  sec.  5.  To  act  as  clerk  in 
trials  before  justices  of  the  peace,  for  forcible  entry  or  unlawful 
detainer,  and  to  issue  all  process  resulting  therefrom.  Acts  1829, 
R.  Code,  ch.  39,  sec.  10.  And  finally,  to  take  the  acknowledg- 
ment or  proof  of  deeds  and  other  instruments  of  writing,  wheth- 
er the  lands  conveyed  lie  in  or  out  of  his  own  county.  Acts, 
1833,  ch.  3,  sec.  3,  December  session.  And  to  record  the  bonds 
of  all  county  officers,  in  a  book  to  be  kept  for  that  purpose.  Acts, 
1844,  ch.  18,  sec.  1. 

The  clerk  of  probate  is  also,  ex  officio,  clerk  of  the  board  of 
police.  By  the  20th  section  of  the  4th  article  of  the  constitution 
of  1832,  it  is  provided  that  "the  clerk  of  probate  shall  be  clerk  of 
the  board  of  county  police;"  and  by  the  act  of  1833,  ch.62,  sec.  10, 
he  is  authorised  and  required  to  do  and  perform  all  acts  which 
were  required  to  be  done  by  the  clerks  of  the  county  courts  and 
registers  of  the  orphans'  courts,  "not  inconsistent  with  the  con- 
stitution and  laws  now  in  force." 

It  is  the  duty  of  the  clerk  of  the  board  of  police  to  keep  and 
preserve  a  correct  entry  of  all  the  proceedings  and  orders  of  said 
board,  and  to  make  an  entry  upon  his  minutes  of  the  attendance 
of  each  member  thereof.  The  clerk  of  said  board,  before  he  en- 
ters upon  the  duties  of  his  office,  shall  enter  into  bond  with  two 
good  securities,  to  be  approved  by  the  board,  in  the  sum  of  two 
thousand  dollars,  payable  to  the  governor  and  his  successors  in 


OH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  459 

oflBce,  conditioned  that  he  will  faithfully  execute  and  perform  the 
duties  of  his  office,  and  safely  keep  all  records,  books  and  papers 
pertaining  thereto,  and  will  deliver  the  same  over  to  his  successor 
when  required ;  which  said  bond  shall  be  recorded  by  said  clerk 
on  the  records  of  said  board,  and  shall  be  filed  by  the  president 
thereof  in  the  ofiice  of  the  secretary  of  state,  and  may  be  put  in 
suit  by  any  person  aggrieved  by  the  malfeasance  of  said  clerk  in 
his  office,  and  shall  not  be  void  on  the  first  recovery,  but  may  be 
sued  upon  until  the  entire  penalty  shalj  be  recovered,  and  a  cer- 
tified copy  thereof  shall  be  received  as  evidence  in  any  court  of 
justice  in  this  state.    Acts,  1833,  chap.  1,  sec.  6.  p.  457. 

The  clerks  of  said  boards  of  police,  shall  have  power  to  appoint 
deputies,  with  the  approbation  of  said  boards,  who  shall  take  the 
oath  of  office ;  and  thereupon,  such  deputies  shall  have  full  pow- 
er and  authority  to  do  and  perform  all  the  several  acts  and  duties 
enjoined  upon  their  principals.  And  the  clerks  of  said  boards 
shall  keep  their  offices  at  the  court-houses  of  the  counties  in  which 
they  are,  or  may  be  clerks.  But  in  all  cases  where  offices  have  not 
been  provided,  for  the  clerks  of  the  said  courts,  such  clerks  may 
keep  the  records,  books  and  papers,  belonging  to  their  offices,  at 
such  places,  as  the  members  of  the  board  of  police  shall  think  fit, 
and  so  enter  of  record.    Acts,  1822,  R.  Code,  ch.  11,  sec.  6. 

Whenever  the  office  of  clerk  of  any  board  of  police  shall  be- 
come vacant  by  any  cause  whatsoever,  the  records,  papers,  books, 
stationery,  and  every  thing  beltnging  or  appertaining  to  said  of- 
fice, shall  be  demanded,  delivered  over,  and  received  in  the  same 
manner,  and  (in  case  of  refusal  or  detention)  under  the  penalties, 
prescribed  in  the  14th  section  of  the  act,  entitled  "An  act  to  re- 
duce into  one  the  several  acts,  and  parts  of  acts,  concerning  the 
establishment,  jurisdiction,  and  powers  of  the  superior  courts  of 
law."    lb.  sec.  8.    Sec.  6,  p.  442. 

If  any  clerk  of  a  board  of  police  shall  willingly  make  any  false 
entry,  or  raze  a  letter,  or  change  any  record  in  his  keeping,  be- 
longing to  his  offie,  every  such  clerk  so  ofi'ending  shall,  on  con- 
viction thereof,  be  fined  and  imprisoned  at  the  discretion  of  the 
court,  and  shall  be  moreover  liable  to  the  action  of  the  party  ag- 
grieved,   lb.  sec.  9. 


460  PROBATE  JUDGE  AND  CLERK.  [CH.  LXII. 

The  several  clerks  of  the  boards  of  police  in  this  state,  and 
their  deputies,  shall  be,  and  they  are  hereby  empowered  to  ad- 
minister oaths  or  affirmations,  in  all  cases  where  an  affidavit  is 
necessary  as  the  foundation  of  any  official  act  to  be  performed  by 
any  such  clerk ;  which  affidavit  shall  be  filed,  and  shall  in  all  re- 
spects, be  as  effectual  as  if  the  oath  thereto  had  been  administer- 
ed by  a  justice  of  the  peace.  And  if  any  person  sworn  by  any 
such  clerk  or  his  deputy,  by  virtue  of  this  act,  shall  give  any  evi- 
dence, under  such  circumstances,  as  would  have  constiuted  the 
same  to  be  perjury,  if  done  in  presence  of  a  court  of  record,  the 
same  shall  be  deemed  perjury  to  all  intents  and  purposes.  Ibid. 
sec.  10. 

All  process  shall  be  tested  in  the  name  of  the  president  of  the 
board  of  police  of  the  county  within  which  the  same  may  issue, 
and  bear  test  on  the  first  day  of  the  terra  next  preceding  that  to 
which  the  same  may  be  made  returnable ;  and  Ahe  clerk  issuing 
the  same,  shall  mark  thereon  the  day  on  which  it  shall  be  issued, 
and  the  sheriff  or  other  officer  receiving  the  same,  shall  mark 
thereon  in  like  manner,  the  day  he  shall  have  received  it;  and 
every  clerk,  sheriff,  or  other  officer  neglecting  so  to  do,  shall  for- 
feit and  pay  the  sum  of  one  hundred  dollars,  to  be  recovered  by 
action  of  debt  in  any  court  of  record  having  cognizance  thereof, 
with  costs,  by  any  person  who  shall  sue  for  the  same.  All  origi- 
nal process,  and  all  subsequent  process  thereupon,  to  bring  any 
person  or  persons  to  answer  to  any  action,  suit,  or  cause  in  any 
board  of  police,  (subpoenas  for  wiftiesses  excepted,  which  may  be 
issued  in  term  time,  and  made  returnable  immediately,)  shall  be 
issued  and  signed  by  the  clerk  of  such  board,  with  the  seal  of  of- 
fice thereto  affixed,  and  shall  be  returnable  on  the  first  day  of  the 
term  next  succeeding  that  at  which  the  same  shall  bear  test,  and 
shall  be  executed  at  least  five  days  before  the  return  day  thereof; 
and  any  writ  or  process,  except  as  aforesaid,  which  shall  issue 
within  five  days  before  the  commencement  of  the  term  of  any 
court,  shall  be  made  returnable  to  the  term  next  after  that  to  be 
held  within  five  days  as  aforesaid,  and  not  otherwise ;  and  all 
writs  and  process  issued,  made  returnable  or  executed  in  any  oth- 
er manner,  or  at  any  other  time  than  is  hereinbefore  directed,  may 
be  abated  upon  the  plea  of  the  defendant,    lb.  sec.  17. 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  461 

The  said  board  shall  have  control  over  all  the  proceedings  in 
the  clerk's  office,  during  vacation,  and  may  correct  any  mistake  or 
errors  which  may  have  happened  therein,  and  may  for  good  cause 
shown,  set  aside  any  of  the  proceedings,  and  make  such  order  con- 
cerning the  same  as  may  be  just  and  right ;  and  may  also,  for  good 
cause  shown,  reinstate  any  suit  or  action  discontinued  during  such 
''vacation.  76.  sec.  20. 
-  When  any  appeal  shall  be  granted  on  any  judgment  or  decis- 
ion of  a  board  of  police,  the  clerk  of  such  board  shall  immediate- 
ly make  up  a  full  and  perfect  record  of  all  proceedings  in  such 
cause,  and  shall  on  the  application  of  either  party,  give  to  such 
party  an  attested  copy  of  such  record,  with  a  taxation  of  all  costs 
which  have  accrued  therein,  and  shall  endorse  on  such  copy  the 
day  on  which  the  same  was  demanded,  and  the  day  on  which  it 
is  delivered,  and  sign  his  name  as  clerk  thereto;  and  if  by  reason 
of  the  neglect  or  delay  of  any  clerk  to  give  a  transcript  of  a  record 
in  any  cause  as  aforesaid,  the  same  shall  not  be  filed  in  the  circuit 
court  in  due  time — or  if  the  record  be  incorrectly  or  erroneously 
made  up,  so  that  the  circuit  court  cannot  proceed  thereon  to  trial 
and  final  decision — such  clerk  shall  in  either  case,  upon  convic- 
tion thereof,  before  an}  court  of  competent  jurisdiction,  be  adjudg- 
ed guilty  of  a  misdemeanor  in  office,  and  shall  be  fined  in  a  sum 
not  exceeding  one  hundied  dollars,  to  the  use  of  the  party  entitled 
to  such  attested  copy,  and  shall  moreover  be  entitled  to  an  action 
on  the  case  for  all  damages  which  such  party  may  sustain  by  rea- 
son of  such  neglect  or  delay.     Ih.  sec.  25. 

For  preventing  errors  in  entering  the  judgments  of  said  boards 
of  police,  the  members  thereof,  before  any  adjournment,  shall 
cause  the  minutes  of  their  proceedings  to  be  publicly  read  by  the 
clerk,  and  corrected,  where  necessary,  and  then  the  same  shall  be 
signed  by  the  president,  or  in  his  absence,  by  any  one  of  the 
members  then  sitting:  which  minutes  so  signed  shall  be  careful- 
ly preserved  among  the  records ;  and  no  proceedings  or  judgments 
of  any  board  of  police  shall  be  of  force,  or  valid,  until  the  same  be 
so  read  and  signed.     Ih.  sec.  28. 

The  said  boards  shall,  once  in  every  year,  appoint  one  or  more 
of  their  own  body,  to  examine  into  the  condition  of  the  clerk's 
office  of  such  county,  who  shall  make  a  report  to  the  board  dur- 


462  PROBATE  JUDGE  AND  CLERK.  [CH.  LXIL 

ing  the  term  at  which  such  appointment  shall  be  made,  specify- 
ing therein  the  state  in  which  the  papers,  books,  records,  and  pro- 
ceedings, belonging  to  said  office,  are  found ;  and  if  it  shall  ap- 
pear by  such  report,  that  any  clerk  has  neglected  to  record  any 
deed,  or  other  instrument  of  writing,  proper  to  be  recorded  in  his 
office,  within  a  reasonable  time  after  the  same  shall  have  been 
lodged  with  such  clerk,  to  be  recorded,  or  has  failed  to  make  out 
and  keep  a  correct  index  to  the  matters  recorded  in  each  and  ev- 
ery book,  or  has  neglected  to  keep  in  regular  order  all  the  papers 
belonging  to  his  office,  keeping  every  document  in  its  proper  file, 
and  the  papers  of  each  suit  together,  or  has  neglected  to  have 
complete  records  made  up  in  due  form,  in  all  causes  in  which  a 
final  judgment  may  have  been  rendered,  within  three  months  af- 
ter the  judgment  in  such  cause:  in  every  such  case,  the  clerk  so 
offending,  shall  be  deemed  guilty  of  a  misdemeanor,  and  may,  for 
the  same,  be  removed  from  office;  and  shall  moreover,  be  liable 
to  any  party  injured,  for  all  damages  which  may  be  sustained  by 
the  default  or  negligence  of  such  clerk.     lb.  sec.  33. 

It  shall  be  the  duty  of  the  clerk  of  each  board  of  police  within 
this  state,  to  procure  for  the  use  of  their  boards  respectively,  a 
seal  with  the  style  of  the  board  around  the  margin  thereof,  and  an 
eagle  in  the  centre,  unless  the  same  be  already  provided :  and 
the  sum  necessary  to  procure  such  seals,  shall  be  paid  out  of  any 
money  in  the  treasury  of  the  proper  county,  not  otherwise  appro- 
priated.    Ih.  sec.  43. 

The  boards  of  county  police  of  the  several  counties  in  this  state 
are  hereby  authorised  and  requested  to  make  such  an  allowance 
to  the  clerks  of  said  boards,  for  extra  services,  as  the  said  boards 
may  in  their  discretion  think  proper  to  make,  payable  out  of  the 
county  treasuries  of  said  counties,  any  law  or  laws  to  the  contrary 
notwithstanding.    Acts,  Dec.  1833. 

Accounts  allowed  by  the  board  of  police  shall  be  recorded  by 
the  clerk  in  a  book  to  be  kept  for  that  purpose,  and  the  claimant 
shall  receive  a  warrant  on  the  county  treasurer,  signed  by  the 
clerk,  with  the  seal  of  office  thereto  affixed,  for  the  amount  allow- 
ed ;  and  the  clerk  shall  number  the  warrants  issued  as  aforesaid, 
in  each  year,  beginning  in  the  term  first  held  in  each  year  and 
progressing  through  the  same  in  numerical  order,  and  register 


OH.  LXII.]  PROBATE  JUDGE  AND  CLERK.  463 

the  number  and  amount  of  each  warrant  in  the  aforesaid  book, 
and  transmit  to  the  auditor  of  public  accounts,  annually,  the 
numbers,  amounts,  and  names  of  claimants  of  all  such  warrants, 
and  an  abstract  of  the  items  or  services,  for  which  the  said  war- 
rants were  issued ;  and  the  result  of  the  said  account  shall  be  en- 
tered in  the  books  of  the  auditor  of  public  accounts,  and  the  a' 
mount  thereof  laid  before  the  legislature  annually,  with  his  other 
accounts.  The  said  clerk  is  authorised  to  issue  his  warrant  on 
the  county  treasury  of  his  county  for  any  allowance  made  by  said 
board,  which  the  treasurer  is  authorised  to  pay  out  of  any  money 
in  the  treasury  not  otherwise  appropriated.  Acts,  1822,  ch.  11, 
sec.  44.    Acts,  1833,  ch.  1,  sec.  29. 

The  boards  of  police,  respectively,  shall  make  allowances  of  the 
sums  of  money  necessary  for  supplying  the  clerk's  offices  with 
books,  tables,  presses,  to  be  paid  out  of  the  county  treasury  of  the 
proper  county.    Acts,  1822,  ch.  11,  sec.  42. 

The  clerk  of  the  board  of  police  is  required  by  law  to  deliver, 
within  ten  days  from  the  date  of  the  appointment  of  any  overseer 
of  a  road,  a  copy  of  the  order  to  the  sheriff  of  the  county,  under 
the  penalty  of  five  dollars ;  and  also  to  fix  up  in  his  court-house, 
once  in  every  year,  a  list  of  the  names  and  precincts  of  all  the 
overseers  of  roads  in  his  county,  under  the  penalty  of  ten  dollars 
for  each  neglect.  It  is  also  his  duty  to  furnish  the  grand  jury, 
on  the  first  day  of  the  term  of  each  circuit  court,  with  a  complete 
list  of  all  the  overseers  of  public  roads  in  his  county,  clearly  set- 
ting forth  the  time  of  the  appointment  of  each  overseer,  and  the 
portion  of  the  road  he  is  required  to  keep  in  order.  Acts,  1833, 
ch.  1,  sec.34.     Acts  1836,  p.  91. 

The  said  clerk  is  required  by  law  to  make  out  a  list  of  such  ad- 
ditional assessment  as  the  collector  shall  make  of  property  omit- 
ted to  be  assessed  by  the  assessor,  and  to  transmit  the  same  to  the 
auditor  of  public  accounts,  by  the  17th  day  of  February  in  each 
and  every  year,  under  a  penalty  of  one  hundred  dollars,  for  which 
he  shall  be  allowed  a  fair  compensation,  at  the  discretion  of  the 
board.  He  is  also  required  to  make  out  two  certified  copies  of 
the  report  of  the  commissioner  appointed  to  value  and  classify 
lands,  one  for  the  tax  collector,  and  the  other  for  the  auditor  of 
public  accounts.    For  each  and  every  return  of  the  classification 


464  PROBATE  JUDGE  AND  CLERK.  [cH.  LXII. 

and  assessment  of  land,  made  and  certified  to  the  auditor  as  afore- 
said, a  compensation  not  exceeding  fifty  dollars,  at  the  discretion 
of  the  board  of  police,  shall  be  allowed  said  clerk,  payable  out  of 
the  treasury  of  the  county.  And  he  is  likewise  required  to  cer- 
tify and  transmit  to  the  auditor  of  public  accounts,  the  accounts 
of  insolvencies  and  delinquencies  allowed  to  the  collectors  of  taxes 
in  his  county,  and  to  post  up  at  the  door  of  the  court-house  a  cer- 
tified copy  of  the  list  of  such  insolvencies  and  delinquencies,  un- 
der the  penalty  of  not  less  than  fifty,  nor  more  than  one  hundred 
dollars.    Acts  1844,  ch.  1,  sec.  33,  36. 

It  is  the  duty  of  the  clerk  of  the  board  of  police  to  issue  licen- 
ses to  persons  to  keep  inns  and  taverns,  to  exhibit  and  sell  victuals, 
vinous,  spirituous  and  other  liquors,  for  the  accommodation  of 
persons ;  and  provender  and  other  sustenance  for  horses  and  cat- 
tle, and  licenses  to  keep  boarding  houses  within  their  respective 
counties,  in  the  manner  prescribed  by  law^,  the  applicants  for  such 
license  having  first  been  recommended  to  said  board,  and  said 
clerk  first  taking  bond  and  security  in  the  form  and  penalty  pre- 
scribed by  law.  Acts  1822,  R.  Code,  ch.  72,  sects.  1,  2,  3.  And 
on  the  application  of  any  person  to  said  clerk  in  the  recess  of  said 
board  of  police,  with  the  recommendation  required  by  law,  and 
on  entering  into  bond,  with  security,  as  aforesaid,  and  depositing 
with  such  clerk  the  amount  of  tax  assessed  for  such  licenses,  and 
the  fee  for  issuing  the  same,  the  said  clerk  shall  issue  a  certificate 
of  deposit,  by  which  the  said  applicant  shall  be  authorised  to 
open  and  keep  an  inn  or  tavern,  until  the  next  succeeding  board 
of  police,  when;  if  approved,  a  license  shall  be  issued  for  one  year 
from  the  date  of  the  deposit ;  and  if  not  approved,  a  due  propor- 
tion of  the  deposit  shall  be  refunded.  Ibid.  sec.  12.  And  it  is 
the  duty  of  the  said  clerk,  on  the  first  day  of  the  term  of  the  circuit 
court  of  his  county,  to  furnish  the  said  court  with  a  list  of  the 
persons  who  have  obtained  licenses  to  keep  inns  and  taverns,  and 
houses  of  private  entertainment,  and  to  retail  spirituous  liquors, 
within  one  year  next  preceding  such  court:  and  every  clerk  neg- 
lecting such  duty,  shall  be  deemed  guilty  of  a  contempt  of  court, 
and  may  be  fined  in  any  sum  not  exceeding  fifty  dollars.  lb.  19. 
And  when  any  license  shall  issue  in  the  recess  of  the  said  board 
of  police,  the  said  clerk  may  renew  the  same  on  application,  as 


CH.  LXII.]  PROBATE  JUDGE  AND  CLERK.     *  465 

in  the  case  of  an  original  license.  Ibid.  sec.  24.  The  said  clerk 
is  also  required  by  law  to  issue  licenses  to  retail  vinous  and  spir- 
ituous liquors,  whenever  the  same  shall  be  granted  by  said  board, 
and  the  applicants  shall  give  bond  as  required  by  law.  Acts, 
1841. 

By  act  of  1846,  it  shall  be  the  duty  of  the  clerk  of  the  probate 
court  to  make  out  two  certified  copies  of  the  return  of  the  asses- 
sor of  his  county,  one  of  which  he  shall  deliver  to  the  tax  collec- 
tor of  the  county,  and  the  other  shall  be  forwarded  to  the  auditor 
of  public  accounts,  by  the  15th  of  November  following.  Act  1846, 
ch.  1,  sec.  24. 

By  the  same  act,  it  is  made  the  duty  of  the  secretary  of  state  to 
have  prepared  and  furnished  to  the  several  clerks  of  probate  in 
this  state,  a  uniform  standard  of  weights  and  measures,  as  soon 
as  practicable,  according  to  the  provisions  of  the  act  of  Congress, 
establishing  a  uniform  standard  of  weights  and  measures  for  the 
United  States.    Sec.  1. 

And  it  shall  be  the  duty  of  the  several  clerks  of  probate  to  give 
notice,  by  advertisement  in  at  least  five  public  places  in  his'coun- 
ty,  one  of  which  places  shall  be  at  the  court-house,  of  the  recep- 
tion of  such  standard  of  weights  and  measures,  and  requiring  a 
compliance  with  the  provisions  of  this  act.    Sec.  2. 

Sections  4  and  5  makes  owners  or  proprietors  of  grist-mills, 
cotton-gins,  grocers  and  factors,  and  others  vending  by  measures, 
and  failing  and  refusing,  within  six  months,  to  have  their  weights 
and  measures  tested  by  this  standard,  and  branded  by  the  clerk  as 
correct,  liable  to  a  fine  of  $50,  and  to  presentment  or  indictment. 

Section  5  authorises  clerks  to  establish  agencies  at  different 
places  in  their  respective  counties,  to  carry  into  effect  the  provis- 
ion of  this  act ;  and  such  clerk,  or  agent,  shall  receive  the  sum  of 
37i  cents  for  testing  or  branding  each  measure  or  set  of  weights, 
as  required  by  (sects.  3  &  4  of )  this  act.  Act  1846,  ch.  42,  pages 
214,  215. 


59 


466  GUARDIAN  AND  WARD.  [CH.  LXIII. 


CHAPTER  LXIII. 

GUARDIAN    AND    WARD. 

§  1.  Any  father,  even  if  he  be  not  twenty-one  years  of  age  * 
may  by  deed  in  his  life-time,  or  by  his  last  will  and  testament, 
either  of  them  being  executed  and  recorded,  according  to  law, 
grant  or  devise  the  custody  and  tuition  of  his  child,  (which  had 
never  been  married,)  although  it  be  not  born,  during  any  part  of 
the  infancy  of  such  child,  to  whomsoever  he  will ;  and  such 
grant  or  devise,  heretofore  or  hereafter  to  be  made,  shall  give  the 
grantee  or  devisee,  the  same  power  over  -the  person  of  the  child, 
as  a  guardian  in  common  socage  hath,  and  authorise  him  by 
actions  of  ravishment  of  ward,  or  trespass,  to  recover  the  child 
with  damages  for  the  wrongfully  taking  or  detaining  of  him  or 
her,  for  his  or  her  use,  and  for  the  same  use  to  undertake  the  care 
and  management,  and  receive  the  profits  of  the  ward's  estate, 
real  and  personal,  and  prosecute  and  maintain  any  such  actions 
and  suits,  concerning  the  same  as  a  guardian  *i  common  socage 
may  do.    How.  &  H.  335. 

§  2.  Every  guardian  so  appointed,  shall,  before  he  exercises 
any  authority  over  the  minor,  or  his  estate,  appear  before  the  or- 
phans' court  of  the  proper  county,  and  declare  his  acceptance  of 
the  guardianship,  which  shall  be  recorded,  and  shall  give  bond 
and  security  as  hereinafter  directed,  for  the  faithful  execution  of 
his  oifice,  unless  it  is  otherwise  directed  by  such  deed,  or  last  will 
a:nd  testament.    Ibid. 

§  3.  If  any  such  guardian  sheil  fail  or  neglect  to  appear  in  the 
r  orphans'  court  of  the  proper  county,  and  give  security  as  afore- 
said, within  three  months  after  his  right  to  the  guardianship  shall 
have  accrued,  he  may  be  summoned  and  compelled  to  declare 


*In  England,  an  infant  may  devise  the  guardianship  of  his  child  by  virtue  of 
Stat.  12,  Cha.  II. — and  it  has  been  contended  that  such  a  disposition  will  draw  af- 
ter it  the  land  as  incident  to  thti guardianship;  but  this  has  not  been  determined. 
3  Lomax,  8,  citing  Vaugh.  177;  2  P.  Wms.  102. 


OH.  LXIII.J  GUARDIAN  AND  WARD.  467 

his  acceptance  or  renunciation  of  such  trust ;  and  if  any  guardian 
appointed  as  aforesaid,  being  summoned,  shall  fail  to  appear,  or 
shall  appear  and  renounce  the  same,  which  renunciation  shall 
be  recorded,  the  said  court  may  and  shall  proceed  to  appoint 
and  qualify  some  other  person  or  persons  to  the  guardianship. 
How.  &  H.  336. 

§  4.  The  orphans'  court  in  any  county  of  this  state,  shall  have 
power  to  appoint  guardians  to  orphans,  under  the  age  of  four- 
teen years — Provided,  none  shall  have  been  appointed  by  deed, 
or  last  will  and  testament  of  the  father  of  such  orphan,  according 
to  the  provisions  of  this  act.  And  where  no  guardian  shall  have 
been  appointed,  by  deed  or  last  will  and  testament  as  aforesaid, 
or  in  case  the  person  so  appointed  shall  renounce  the  trust,  or 
fail  to  give  security,  the  said  court  shall  have  power  to  allow  or- 
phans of  the  age  of  fourteen  years  or  upwards,  to  choose  guar- 
dians of  their  own  election,  which  shall  be  done  by  petition  to 
said  court,  signed  and  acknowledged  by  the  orphan  in  presence 
of  the  judge  of  probate,  or  some  justice  of  the  peace  of  the  prop- 
er county,  and  recorded  by  the  register  of  the  orphans'  court ; . 
but  if  such  orphan  shall  elect  a  person,  other  than  the  natural 
guardian,  the  court  shall  have  power,  at  discretion,  to  appoint 
such  natural  guardian,  in  lieu  of  the  person  so  chosen  by  such 
orphan.  And  if  any  orphan  of  the  age  of  14  or  upwards,  shall 
fail  to  appear  and  choose  a  guardian  as  aforesaid,  the  said  court 
shall  cause  a  citation  to  issue  to  such  orphan,  to  appear  at  the  next 
term,  and  elect  a  person  for  his  or  her  guardian ;  and  in  default 
thereof,  or  if  the  guardian  so  chosen,  shall  refuse  the  trust,  or  fail 
to  give  good  and  sufficient  security,  the  said  orphans'  court  shall 
have  the  same  power  to  appoint  a  guardian  to  such  orphan,  as  if 
he  or  she  were  under  the  age  of  14  years,  giving  the  preference 
in  all  cases  to  the  natural  guardian,  or  next  of  kin,  if  any  such  ap- 
ply for  the  guardianship,  and  tender  the  proper  security,  unless 
such  applicant  be  manifestly  unsuitable  to  take  the  management 
of  the  person  and  estate  of  such  orphan.    Ibid. 

A  stranger  cannot  move  for  a  revocation  of  letters.  1  How.  R. 
295.  The  minor  ward  on  marriage  is  entitled  to  her  estate.  2 
How.  R.  893. 


468  GUARDIAN  AND  WARD.  [CH.  LXIII, 

§  5.  Every  guardian  appointed  by  the  court  or  otherwise,  (ex- 
cept where  no  security  is  required  by  deed  or  last  will  and  testa- 
ment, before  he  shall  have  authority  to  act  as  such,)  shall  enter 
into  bond  to  the  judge  of  probate,  and  his  successors  in  office,  in 
such  penalty,  and  with  such  securities,  as  the  court  shall  approve ; 
and  such  bond  shall  be  recorded,  and  be  subject  to  be  put  in  suit, 
and  be,  in  all  respects,  on  a  footing  with  the  bond  given  by  an 
executor  or  administrator ;  and  the  form  of  the  condition  of  it  shall 
be  as  follows : 

"  The  condition  of  the  above  obligation  is  such,  that  if  the  a- 

bove  bounden ,  as  guardian  to ,  of 

county,  shall  faithfully  account  with  the  orphans'  court  of 

county,  as  directed  by  law  for  the  management  of  the  property 
and  estate  of  the  orphan  under  his  care,  and  shall  also  deliver  up 
the  said  property,  agreeably  to  the  order  of  the  said  court,  or  the 
directions  of  law,  and  shall,  in  all  respects,  perform  the  duty  of 

guardian  to  the  said ,  according  to  law,  then  the  above 

obligaticMi  shall  cease :  it  shall  otherwise  remain  in  full  force  and 
virtue  in  law"     How,&  H,  337. 

§  6.  On  a  guardian's  executing  such  bond,  the  court  shall 
have  power  to  order  the  land,  distributive  share  or  other  property 
belonging  to  su^h  orphan,  to  be  delivered  to  such  guardian  im- 
mediately, or  at  such  time,  as  shall  appear  reasonable ;  in  case  of 
a  legacy  or  bequest,  the  court  shall  direct  the  delivery  as  soon  as 
it  shall  appear  that  the  same  may  be  delivered  without  prejudice 
to  the  person  administering ;  and  in  case  of  a  distributive  share, 
the  court  shall  direct  the  delivery  as  soon  as  the  same  shall  be 
ascertained ;  and  on  failure  of  any  former  guardian  appointed  by 
the  court,  or  of  an  executor  or  administrator,  to  comply  with  such 
order,  his  bond  may  be  put  in  suit,  and  he  may  also  be  attached, 
fined  and  imprisoned  for  contempt  of  court.    Ibid. 

§  7.  Every  testamentary  or  other  guardian  shall,  within  three 
months  after  his  appointment  and  acceptance  of  such  office, 
deliver  into  the  office  of  the  register  of  the  orphans'  court,  an 
inventory,  on  oath,  of  all  the  estate,  real  and  personal,  which 
he  shall  have  received,  or  taken  possession  of,  to  be  entered  of 
record,  and  shall  exhibit  once  in  every  year  and  oftener  if  there- 


CH.  LXIII.]  GUARDIAN  AND  WARD.  469 

unto  lawfully  required,  an  account  of  the  product  of  the  said 
estate,  and  of  the  sale  and  disposition  of  such  product,  and  dis- 
bursements ;  which  accounts  being  examined  and  audited  by  the 
judge  of  probate,  in  the  same  manner  as  executors  or  adminis- 
trator's accounts,  and  reported  fairly  stated,  and  supported  by 
vouchers,  and  approved  by  the  court,  shall  be  recorded  in  the 
register's  office. 

Any  guardian  who  shall  not  deliver  in  such  an  inventory,  or 
render  such  an  account,  shall,  by  order  of  the  orphans'  court,  to 
which  he  is  artswerable,  be  summoned,  and  if  he  remain  in  de- 
fault, his  bond  may  be  put  in  suit,  and  a  new  guardian  appointed. 
And  the  said  court  may,  for  any  good  and  sufficient  cause,  dis- 
place a  guardian ;  giving  such  guardian  fourteen  days'  previous 
notice,  by  citation,  to  appear  and  show  cause  why  he  should  not 
be  displaced.    How.  &  H.  337. 

§  8.  No  guardian  shall  commit  waste  on  the  lands,  tenements, 
or  hereditaments  of  his  ward,  but  the  court  may,  on  his  applica- 
tion, allow  him  to  cut  down  and  sell  wood,  and  account  for  the 
same,  in  case  it  shall  deem  the  same  advantageous  or  necessary 
for  the  ward's  education  and  maintenance.  And  any  guardian 
having  real  estate  under  his  care,  shall  either  cultivate  the  same, 
with  the  slaves,  stock  and  utensils,  belonging  to  the  ward  or  to  be 
purchased  with  his  or  her  money,  with  the  approbation  of  the 
court,  or  he  shall  lease  the  same  from  year  to  year,  or  for  any  term 
not  exceeding  three  years,  and  within  the  non-age  of  the  ward : 
or  he  may,  with  the  approbation  of  the  court,  undertake  the  es- 
tate on  his  own  account,  and  be  answerable  for  the  annual  value, 
which  annual  value  shall  be  ascertained  under  the  direction  of  the 
court.  And  every  guardian  shall  account  for  all  profit  and  increase 
of  the  estate,  or  annual  value  as  aforesaid,  and  shall  not  be  answer- 
able for  any  loss  or  decrease  sustained  without  his  fault,  to  be  al- 
lowed by  the  orphans'  court.    Ibid. 

§  9.  The  orphans'  court  shall  ascertain  at  discretion,  and  settle 
the  sum  to  be  expended  annually  in  the  maintenance  and  educa- 
tion of  orphans,  having  regard  to  the  future  situation,  prospects 
and  destination  of  the  ward ;  and  the  said  court,  if  it  shall  deem  it 
advantageous  to  the  ward,  may  allow  the  guardian  to  exceed  the 
income  of  the  estate,  and  loay  order  the  sale  of  such  part  of  the 


470  GUARDIAN  AND  WARD.  [CH.  LXIII. 

personal  estate,  as  may  be  necessary  for  the  purpose  aforesaid ; 
and  if  the  personal  estate  and  the  rents  and  profits  of  the  real  es- 
tate, be  not  sufficient  for  the  maintenance  and  education  of  the 
ward,  the  orphans'  court,  on  full  investigation  thereof,  may,  from 
time  to  time,  order  the  guardian  to  sell  such  part  of  the  ward's 
lands,  tenements  and  hereditaments,  as  it  shall  direct  and  judge 
adequate  to  his  or  her  maintenance  and  education.  How.  &  H. 
338. 

§  10.  The  lands,  tenements,  and  hereditaments  so  ordered  to 
be  sold,  shall  be  advertised  by  the  guardian  in  three  of  the  most 
public  places  in  the  county,  and  in  some  public  newspaper  in  this 
state,  for  the  space  of  forty  days  previous  to  the  time  appointed  for 
the  sale  thereof;  and  the  guardian,  at  the  time  and  place  so  adver- 
tised, shall  sell  the  same  at  public  vendue  upon  a  credit  of  twelve 
months,  after  the  day  of  sale,  to  the  highest  bidder,  who  shall  give 
bond  with  satisfactory  security  for  the  amount  thereof;  and  such 
guardian  shall  make  report  in  writing  of  his  proceedings  thereon, 
to  the  next  orphans'  court  after  such  sale :  Provided,  that  the 
said  guardian  may  adjourn  the  said  sales  from  time  to  time,  at  his 
discretion.  And  said  guardian  shall  make  a  deed  to  the  purchaser 
or  purchasers  for  the  lands,  tenements  and  hereditaments  so  sold ; 
which  deed  shall  vest  in  the  purchaser  or  purchasers,  as  good 
and  perfect  an  estate,  in  the  premises  therein  mentioned,  as  the 
ward  was  seized  of,  or  entitled  to  at  the  time  of  making  the  said 
order.    Ihid. 

§  11.  Every  account  of  a  guardian  shall  state  his  expenditures 
in  maintaining  and  educating  the  ward,  not  exceeding  the  income 
of  the  estate,  unless  allowed  by  the  court ;  and  for  no  balance  of 
money  in  his  hands  shall  he  be  charged  interest,  unless  he  shall 
consent  to  take  the  same  on  interest ;  but  the  court  may  direct  him 
to  place  the  same  at  interest,  taking  bond  to  the  orphan,  with  se- 
curity approved  by  the  court ;  and  for  the  trouble  and  care  of  such* 
guardian,  the  court  may  allow  any  commission  not  exceeding  ten 
per  cent.     Ibid. 

§  12.  The  orphans'  court,  if  it  be  informed,  or  have  cause  to 
suspect,  that  the  sureties  of  a  guardian,  or  any  of  them,  are  in 
failing  or  dubious  circumstances,  may  require  and  compel  such 
guardian  to  give  additional  surety  or  sureties ;  and  if  he  refuse 


CH.  LXIII.]  GUARDIAN  AND  WARD.  ^  471 

or  neglect  so  to  do,  may  displace  him,  and  appoint  a  new  guar- 
dian.   How.  &H.  338. 

§  13.  The  powers  and  duties  of  every  testamentary  or  other 
guardian,  over  the  person  and  estate  of  the  ward,  shall  cease  and 
determine  when  such  ward  shall  either  arrive  at  the  age  of  21 
years,  or  be  lawfully  married ;  and  in  either  event,  the  guardian 
shall  forthwith  render  a  final  account  of  his  guardianship,  to  the 
orphans'  court,  and  shall  deliver  up,  agreeably  to  the  order  of  said 
court,  to  the  said  ward,  (or  to  the  husband,  as  the  case  may  re- 
quire,) all  the  property  of  such  ward,  in  his  hands,  including 
bonds  and  other  securities,  and  on  failure  he  shall  be  liable  to  an 
action  on  his  bond,  and  to  fine  and  imprisonment  for  a  contempt 
of  said  court.    Ibid.  339. 

§  14.  The  orphans'  court  of  each  county  in  this  state  is  here- 
by authorised  and  empowered,  in  their  respective  counties,  on 
request  made  by  the  friends  or  relations  of  any  idiot,  lunatic  or 
person  non  compos  mentis,  or  by  the  overseer  of  the  poor,  for  the 
district  in  which  such  idiot,  lunatic  or  person  non  compos  mentis 
resides,  by  writ  to  direct  the  sheriff"  of  the  said  county  to  summon 
twelve  good,  discreet  and  lawful  men  of  the  county,  and  neighbor- 
hood of  the  residence  of  such  person  to  make  inquisition  thereto 
on  oath ;  and  if  the  person  said  to  be  an  idiot,  lunatic  or  non  com- 
pos mentis,  shall  be  adjudged,  by  such  inquest  (or  a  majority  of 
them)  to  be  incapable  of  taking  care  of  himself  or  herself,  they 
shall  certify  the  same  under  their  hands  and  seals  to  the  orphans' 
court,  and  the  said  orphans'  court  shall  appoint  some  suitable 
person  or  persons  to  be  guardian  or  guardians  to  such  idiot,  luna- 
tic, or  non  compos  mentis;  directing  and  empowering  such  guar- 
dian or  guardians  to  take  care  of  the  person  and  estate,  both  real 
and  personal,  of  such  idiot,  lunatic  or  non  compos  mentis.  And 
the  said  guardian  or  guardians  shall  make  a  true  and  perfect  in- 
ventory of  the  said  estate,  and  return  the  same,  within  the  same 
time,  and  account  with  the  orphans'  court  as  often,  and  in  the 
same  manner  as  guardians  to  orphans  are  before  directed  by  this 
act,  and  shall  give  bond  and  security  in  like  manner ;  and  the  said 
court  shall  have  the  same  power  and  control  over  such  guardian 
or  guardians,  to  all  intents  and  purposes,  as  over  guardians  to 
orphans.    Ihid. 


41S  GUARDIAN  AND  WARD.  [CH.  LXIII. 

§  15.  It  shall  be  the  duty  of  such  guardians,  to  improve  frugal- 
ly, and  without  waste  or  destruction,  the  estate  of  the  idiot,  luna- 
tic, or  person  nop,  compos  mentis,  and  apply  the  income  and  pro- 
fits thereof  to  the  comfortable  maintenance  and  support  of  such 
idiot,  lunatic,  or  non  compos  mentis,  and  of  his  household  or  fam- 
ily, (if  any  there  be,)  and  the  said  guardian  or  guardians  are  here- 
by empowered  to  collect,  sue  for,  and  recover,  all  just  debts  due 
to  such  idiot,  lunatic,  or  non  compos  mentis;  and  they  shall  also 
be  subject  to  the  payment  of  all  just  debts  owing  by  such  person, 
which  were  contracted  when  he  or  she  was  of  sound  mind,  and 
before  his  or  her  lunacy  or  distraction,  out  of  the  personal  estate, 
or  if  that  be  insufficient,  then  out  of  the  real  estate,  in  such  way 
and  manner  as  executors  and  administrators  may  by  law  discharge 
the  debts  of  deceased  persons,  when  the  personal  estate  of  the 
testator  or  intestate  is  insufficient.  And  the  said  guardian  or 
guardians  shall  have  the  same  power  and  authority,  by  order  of 
the  orphans'  court,  to  sell  the  lands,  tenements,  and  hereditaments 
of  any  idiot,  lunatic,  or  non  compos  mentis,  for  the  purpose  afore- 
said, as  by  this  act  is  given  to  executors  or  administrators,  in  sim- 
ilar cases,  observing  the  same  rules  arid  restrictions ;  and  the  deed 
or  deeds  of  conveyance  of  such  guardian  or  guardians,  shall  have 
the  same  force,  effect,  and  validity,  to  all  intents  and  purposes. 
How.  &  H.  339.     See  p.  294  to  298. 

§  16.  If  any  such  idiot,  lunatic,  or  non  compos  mentis,  shall  be 
restored,  to  the  use  of  his  or  her  reason,  and  sanity  of  mind,  (and 
the  same  be  made  to  appear  to  the  orphans'  court,  who  shall  judge 
thereof,)  on  application  to  said  court,  the  residue  and  remainder 
of  his  or  her  estate,  both  real  and  personal,  shall  be  returned  and 
delivered  to  him  or  her,  the  guardian  or  guardians  having  such 
reasonable  allowance,  for  their  care,  charge  and  trouble,  as  the 
court  shall  order.    Ibid.  340. 

§  17.  In  all  cases  where  letters  of  guardianship  shall  hereafter 
be  granted,  the  person  or  persons  to  whom  the  same  shall  be  gran- 
ted, shall  take  an  oath  faithfully  to  discharge  the  duties  of  their 
office,  which  oath  shall  be  administered  by  the  judge  of  probates 
at  the  time  of  granting  letters  of  guardianship,  any  law  to  the  con-  • 
trary  notwithstanding.    Ibid. 


CH.  LXITI.]  GUARDIAN  AND  WARD.  473 

§  18.  Guardians  who  reside  out  of  this  state,  and  within  any 
one  of  the  United  States,  whose  wards  have  estates  therein,  may 
apply  to  the  court  having  jurisdiction  of  the  matter,  and  file  a 
certified  copy  of  his  letters  of  guardianship,  under  the  seal  of 
that  court  granting  the  same,  giving  bond  in  such  sum,  with 
such  security  as  shall  be  required  by  the  court  to  whom  applica- 
tion is  made,  conditioned  as  the  law  requires ;  and  the  court 
shall  grant  to  every  such  guardian,  all  the  rights  and  privileges 
that  are  by  law  exercised  by  other  guardians  of  this  state.  How. 
&  H.  340. 

Where  any  minor  resident  in  any  other  state  in  the  Union, 
shall  have  property,  real  or  personal,  or  any  effects,  rights  or  cred- 
its in  this  state,  and  such  minor  shall  have  no  guardian  within 
this  state,  it  shall  be  the  duty  of  the  probate  court  of  the  county 
within  which  such  property,  effects,  rights  or  credits  may  be,  to 
appoint  as  guardian  of  the  estate  of  such  minor,  any  fit  and  prop- 
er person  entitled  to  such  guardianship,  who  may  apply  for  the 
same,  on  his  giving  bond  and  security  as  required  by  law  of  oth- 
er guardians :  Provided,  at  any  time  such  appointment  may  be 
superseded  by  the  court,  on  such  minors  appearing  and  making 
an  election  to  the  contrary,  if  of  age  to  make  such  election :  And 
provided,  also,  that  such  election  may  be  made  before  any  probate 
or  county  court  of  the  county  and  state  where  such  infant  may 
reside,  and  being  certified  under  the  seal  of  said  court,  shall  have 
the  same  effect  as  if  he  or  she  were  personally  present  in  court; 
and  this  act  shall  take  effect  and  be  in  force  from  and  after  its 
passage.    Act  of  1846,  p.  227. 

§  19.  In  relation  to  bastard  children,  it  is  provided  that  it  shall 
be  the  duty  of  the  county  court  to  appoint  a  guardian  or  guar- 
dians to  said  child ;  and  upon  his,  her  or  their  entering  into  bond, 
with  good  and  sufficient  security,  to  be  approved  by  the  court, 
for  the  faithful  performance  of  his,  her  or  their  duty,  the  money 
shall  be  paid  over  by  the  court,  to  such  guardian  or  guardians. 
How.  &  H.  334. 

§  20.  All  the  provisions  contained  in  the  12th  section  of  the 
act,  entitled  "An  act  to  reduce  into  one  the  several  acts  concern- 
ing last  wills  and  testaments,  the  duties  of  executors,  administra- 
00 


474  GUARDIAN  AND  WARD.  [cH.  LXllI. 

tors  and  guardians,  and  the  rights  of  orphans  and  other  represen- 
tatives of  deceased  persons,,"  passed  November  26th,  1821,  so  far 
as  they  relate  to  appeals  taken  from  the  court  established  by  that 
act,  be,  and  the  same  are  hereby  made  applicable  to  appeals  taken 
from  the  said  probate  court,  to  the  chancery  court  and  supreme 
court  of  this  state.     Ante.  pp.  27,  30. 

The  65th  section  of  the  9th  chapter  of  the  Revised  Code  of 
Mississippi,  with  all  the  powers  and  rights  thereby  conferred,  and 
the  duties  thereby  enjoined,  are  extended  so  as  to  embrace  the 
sureties  and  bonds  of  guardians  in  the  same  manner  that  the  65th 
section  of  the  above  recited  act  extends  to  and  embraces  the  sure- 
ties of  executors  and  administrators,  and  the  duties  and  powers  of 
the  orphans'  court  in  relation  thereto.     Ibid.  418.     To  wit : 

When  sureties  for  executors  or  administrators,  or  their  repre- 
sentatives, conceive  themselves  in  danger  of  suifering  thereby, 
and  petition  the  court  for  relief,  the  court  shall  summon  the  exe- 
cutor or  administrator,  and  shall  have  full  power  to  order,  either 
that  the  said  executor  or  administrator  shall  give  good  counter  se- 
curity, or  that  he  shall  execute  a  new  bond,  with  good  security, 
in  a  penalty  not  less  than  the  penalty  of  the  first  bond  executed  by 
him,  for  the  faithful  discharge  of  his  duties,  and  payable,  in  like  ' 
manner,  to  the  judge  of  probate  of  the  proper  county,  and  his  suc- 
cessors in  office.  And  such  new  bond  shall  have  relation  back  to 
the  time  of  granting  the  letters  testamentary,  or  of  administration, 
and  shall  be  as  effectual  in  every  respect  as  if  it  had  been  execu- 
ted before  such  letters  had  been  granted.  The  condition  thereof 
shall  be  as  follows: 

"  The  condition  of  the  above  obligation  is,  that  whereas  the 

above  bound ,  executor  of  the  last  will  and 

testament  of ,  deceased,  (or  administrator 

of  the  goods,  chattels  and  credits  of ,  deceased,) 

hath  heretofore  executed  a  bond  payable , 

and  conditioned  for  the  discharge  of  his  duties  as  executor,  (or 

administrator,)  as  aforesaid,  which  said  bond  bears  date  the 

day  of ;   and  whereas  by  an  order  of  court  made 

on  the day  of ,  other  bond  and  security 

hath  been  required  of  the  said  executor,  (or  administrator): — 


OH.  LXIIl.J  GVARDIAN  AND  WARD.  475 

now,  therefore,  if  the  said  executor  (or  administrator)  shall  well 
and  truly  have  kept  and  performed,  and  shall  well  and  truly 
keep  and  perform  the  condition  of  the  bond  aforesaid,  and  shall, 
in  all  respects,  have  performed  and  shall  continue  to  perform 
t)ie  duties  of  his  office  aforesaid,  then  this  obligation  to  be  void, 
otherwise  it  shall  remain  in  full  force  and  virtue."  How.  &  H. 
398.     For  executor,  &c.  insert  guardian. 

§  21.  It  shall  be  lawful  for  any  person  interested  in  any  estate, 
who  can  produce  just  cause  to  the  probate  court  of  any  county  in 
this  state,  that  any  guardian,  administrator  or  executor  is  about  to 
remove  the  property  of  any  minor,  or  the  property  of  any  estate 
beyond  the  limits  of  this  state,  with  a  design  of  defrauding  any 
minor,  or  the  heirs  of  any  estate,  it  shall  be  the  duty  of  the  judge 
of  probate,  when  such  application  may  be  made,  to  issue  a  precept 
to  the  sheriff  of  the  proper  county  where  such  application  may  be 
made,  commanding  the  sheriff  forthwith  to  seize  the  estate  about 
to  be  so  removed,  and  dispossess  such  administrator,  executor  or 
guardian,  and  to  revoke  the  letters  of  any  such  person,  and  com- 
mit the  administration  or  guardianship  of  any  such  estate  to  such 
person  as  the  judge  of  probate  may,  in  his  discretion,  see  fit  and 
proper.     How.  &  H.  415. 

§  22.  When  any  guardian,  residing  without  the  limits  of 
this  state,  of  any  minor  or  minors  within  the  age  of  21  years,  or 
of  any  person  non  compos  mentis,  shall  desire  to  remove  the  pro- 
perty of  any  such  minor  or  minors,  or  person  non  compos  mentis, 
out  of  this  state,  such  foreign  guardian  shall  file  in  the  probate 
court  of  the  proper  county,  in  this  state,  a  petition  under  oath, 
stating  that  he  or  she  is  qualified  and  acting  guardian  of  such 
minor  or  minors,  or  person  non  compos  mentis,  in  the  state  or 
territory  to  which  he  or  she  desires  to  remove  the  property  of 
such  minor  or  minors,  or  person  non  compos  mentis,  and  such 
foreign  guardian  shall  file  with  said  petition  copies  of  his  or  her 
letters  of  guardianship  and  guardian  bond,  properly  certified  and 
authenticated.     Act,  1846,  ch.  15,  sec.  1. 

That  upon  the  filing  of  such  petition,  if  in  term  time,  the  court 
shall  by  order,  appoint  some  discreet  person,  guardian  ad  litem, 
for  such  minor  or  minors,  or  person  non  compos  mentis,  and  shall 
order  citation  to  issue  to  such  guardian  ad  litem,  to  appear  and 


476  GUARDIAN   AND  WARD.  [CH.  LXllI. 

answer  said  petition  on  a  day  to  be  named,  whicli  citation  shall 
be  served  at  least  ten  days  before  the  return  day  thereof;  and  if 
said  petition  shall  be  filed  in  vacation,  the  judge  of  probate  shall 
make  the  orders  by  this  section  of  this  act  required,  by  fiat  to  the 
clerk  of  said  court.     Ih.  sec,  2. 

Upon  the  return  of  such  citation  executed,  and  upon  the  hear- 
ing of  said  petition,  answer,  and  such  proofs  as  may  be  submitted, 
and  due  deliberation  had  thereon,  if  it  shall  appear  to  the  satis- 
faction of  said  court  that  the  interest  of  such  minor  or  minors,  or 
person  non  compos  mentis,  would  be  promoted  by  the  removal  of 
his  or  her,  or  their  property,  out  of  this  state,  said  court  shall  grant 
an  order  authorising  such  foreign  guardian  to  remove  the  proper- 
ty of  such  minor  or  minors,  or  person  non  compos  mentis,  to  the 
state  in  which  such  foreign  guardian  shall  be  qualified  and  acting 
as  such  guardian ;  and  such  order  shall  be  authority  to  such  for- 
eign guardian  to  demand  and  receive  the  property  of  such  minor 
or  minors,  or  person  non  compos  mentis,  and  the  receipt  of  such 
foreign  guardian  shall  be  a  full  and  perfect  discharge  to  the  per- 
son or  persons  having  such  property  in  possession :  Provided^ 
that  continuances,  writs  of  error  and  appeals,  may  be  granted  as 
in  other  cases,     lb.  sec.  3. 

Upon  granting  the  order  for  the  removal  of  such  property,  as 
provided  for  by  the  provisions  of  this  act,  the  court  shall  order 
the  letters  of  guardianship  and  guardian  bond,  filed  with  said 
petition,  to  be  recorded ;  and  such  bond  shall  be  received  in  evi- 
dence as  other  guardian  bonds ;  and  for  any  breach  of  the  condi- 
tion of  such  bond,  any  suit  or  action  may  be  maintained  and  pros- 
ecuted, as  on  other  guardian  bonds  in  this  state.    lb.  sec.  4. 

The  provisions  of  this  act  shall  apply  to  the  case  of  any  guar- 
dian appointed  and  qualified  in  this  state,  who  shall  remove  out 
of  this  state,  and  become  guardian  of  the  same  ward  or  wards  in 
any  other  state  or  territory,  and  shall  desire  to  remove  the  proper- 
ty of  his  or  her  ward  or  wards  out  of  this  state ;  and  this  act  shall 
be  in  force  from  and  after  its  passage.     lb.  sec.  5. 

§  23.  When,  hereafter,  any  executor,  administrator,  or  guar- 
dian, or  other  person  interested  in  the  lands,  tenements,  or  here- 
ditaments of  any  deceased  person,  shall  suggest  to  the  orphans' 
court  of  any  county  in  this  state,  that  it  will  be  for  the  interest  of 


CH.  LXIII.]  GUARDIAN  AND  WARD.  477 

the  devisees,  heirs  or  other  legal  representatives  of  any  such  de- 
cedent, to  sell  the  whole  or  any  part  of  such  lands,  tenements,  or 
hereditaments,  and  shall  make  application  to  any  such  orphans' 
court  to  order  the  sale  of  the  same,  it  shall  be  the  duty  of  such 
court  forthwith  to  issue  a  citation  directing  all  persons,  in  any 
manner  interested  in  said  lands,  tenements,  or  hereditaments,  to 
appear  before  the  said  court,  at  a  day  to  be  named,  not  less  than 
sixty  days  after  the  time  of  issuing  such  citation,  to  show  cause 
why  the  said  lands,  tenements,  and  hereditaments  should  not  be 
sold,  and  it  shall  be  the  duty  of  the  administrator,  executor,  guar- 
dian, or  other  person  making  such  application,  to  advertise  in 
two  of  the  most  public  newspapers  printed  in  the  state,  for  a 
period  of  six  successive  weeks,  a  notice  to  all  persons  interested 
in  such  lands,  tenements,  and  hereditaments,  specifying  the  same 
particularly  in  said  notice,  to  appear  at  the  court  at  which  such 
citation  is  made  returnable,  to  show  cause,  if  any  they  can,  why 
said  lands,  tenements  and  hereditaments  shall  not  be  sold,  and 
upon  the  return  of  such  citation  executed,  if  the  parties  to  whom 
it  is  directed  reside  in  the  said  state,  or  upon  proof  of  such  pub- 
lication as  aforesaid,  the  said  court  is  hereby  authorised  and  em- 
powered, if  they  shall  be  satisfied  from  all  the  proofs  exhibited, 
that  the  interest  of  the  heirs,  devisees  or  other  persons  interested 
in  such  lands,  tenements,  or  hereditaments,  will  be  promoted  by 
selling  the  same,  to  order  the  same  to  be  sold  on  such  credits  and 
terms  as  they  shall  deem  most  advantageous  to  those  interested : 
Provided,  however,  that  no  such  lands,  tenements  and  heredita- 
ments, shall  be  sold  on  a  credit  for  a  shorter  time  than  12  months. 

The  said  court,  at  the  time  of  ordering  the  sale  of  any  such  lands, 
tenements  and  hereditaments  as  aforesaid,  shall  take  bond,  with 
good  and  sufficient  security,  from  the  executor,  administrator,  guar- 
dian, or  other  person  petitioning,  for  any  sale,  in  a  sufficient  pen- 
alty, conditioned  to  apply  the  proceeds  of  said  sale  in  the  same 
way  the  lands,  tenements  or  hereditaments  would  have  descend- 
ed, been  applied  or  appropriated  if  no  such  order  of  sale  had  been 
made.    How.  &  H.  41 8-19. 

§  24.  From  and  after  the  passage  of  this  act,  executors,  admin- 
is;trators  and  guardians  bo,  and  they  are  hereby,  authorised  to  re- 
linquish such  lands,  as  the  interest  of  tlic  heirs  of  the  testator  or 


478  GUARDIAN  AND  WARD.  [CH.  LXIII. 

intestate,  or  their  wards  may  require,  and  with  which  they  are 
charged,  by  virtue  of  their  letters. 

Executors,  administrators  and  guardians  are  hereby  authorised 
to  apply  the  amount  that  may  have  been  paid  on  such  relinquish- 
ed lands,  to  the  payment  of  other  lands,  belonging  to  the  heirs  of 
the  testator,  intestate,  or  their  ward  or  wards,  according  to  the  pro- 
visions of  the  several  acts  of  congress,  relative  to  the  relief  of  pur- 
chasers of  public  lands. 

When  it  shall  appear  to  the  satisfaction  of  the  county  court,  that 
the  said  lands  cannot  be  relinquished  without  injury  to  the  said 
estate,  they  may  direct  the  same  to  be  sold. 

The  provisions  of  the  97th  section  of  the  above  recited  act,  be 
extended  so  as  to  embrace  the  guardians  of  minors  and  persons 
incapable  in  law  to  manage  their  own  estate.  How.  &  H.  pp. 
416,417.    (Obsolete.) 

Whenever  any  person  shall  have  purchased  land  of  the  United 
States,  and  shall  die  before  the  payment  therefor  shall  have  been 
completed,  his  or  her  executor  or  administrator,  shall  be,  and  he 
is  hereby  authorised  and  empowered  to  sell  by  order  of  the  or- 
phans' court  of  the  proper  county,  any  property  belonging  to  the 
estate  of  the  deceased,  giving  public  notice  of  the  time  and  place 
of  such  sale,  and  upon  such  terms  as  shall  be  prescribed  by  the 
said  orphans'  court,  and  to  apply  the  proceeds  of  such  sale  to  the 
payment  of  such  land :  Provided,  nevertheless,  that  this  shall  not 
extend  to  cases  where  the  testator  or  testatrix  shall  have  made  pro- 
vision for  the  payment  of  such  land,  by  his  or  her  last  will  and 
testament. 

Whenever  any  person  shall  have  purchased  land  of  the  United 
States,  and  shall  die  before  the  payment  thereof  is  completed,  and 
thiB  personal  property  of  said  deceased,  in  the  opinion  of  the  or- 
phans' court  of  the  proper  county,  shall  be  insufficient  to  pay  the 
balance  due  for  said  land,  the  said  orphans'  court  are  hereby  vest- 
ed with  power  and  authority  to  grant  to  the  executor  or  adminis- 
trator of  said  deceased,  an  order  to  sell  land  so  purchased  of  the 
United  States  and  unpaid  for,  upon  such  terms  as  in  the  opinion 
of  the  said  orphans'  court  will  be  most  advantageous  for  said  es- 
tate, and  to  transfer  to  the  purchaser  or  purchasers  the  certificate 
for  the  same.    How.  &H.  407.    (Obsolete.) 


CH.  LXIII.]  GUARDIAN  AND  WARD.  479 

§  25.  When  the  estate  of  any  deceased  person,  or  the  proper- 
ty of  any  minor  or  minors,  shall  consist  of  lands  or  other  real  es- 
tate, and  slaves  or  other  personal  property,  and  the  county  and 
probate  court  of  the  proper  county  shall  be  of  opinion  that  the  in- 
terest of  the  said  estate,  or  the  said  minor  or  minors  will  be  pro- 
moted by  the  sale  of  the  lands  or  other  real  estate  in  preference  of 
the  slaves  and  other  personal  property,  the  said  court  may,  at  its 
discretion,  order  the  sale  of  said  lands  and  other  real  estate,  in- 
stead of  the  slaves  and  other  personal  property,  on  such  credit,  not 
exceeding  four  years,  as  the  said  court  may  be  of  opinion  will  best 
promote  the  interest  of  the  said  estate,  or  the  interest  of  the  said 
minor  or  minors,  the  purchaser  giving  bond  and  security,  as  re- 
quired in  the  other  cases  of  the  sale  of  property  of  deceased  per- 
sons.   How.  &  H.  417. 

§  26.  Hereafter  it  shall  be  lawful  for  the  guardians  of  idiots, 
lunatics,  and  persons  non  compos  mentis,  to  sell  the  real  estate 
of  such  idiot,  lunatic,  or  person  non  compos  mentis,  under  the 
rules  and  regulations  now  prescribed  by  law  for  the  sale  of  real 
estate  by  executors,  administrators  and  guardians.  How.  &  H. 
420-21. 

§  27.  When  any  person  or  persons,  having  a  legacy  bequeathed 
in  any  last  will  and  testament,  shall  sue  for  and  recover  the  same, 
either  at  law  or  in  equity,  it  shall  be  the  duty  of  the  court  or  jury, 
as  the  case  may  be,  to  give  judgments  in  case  of  a  decree  of  the 
court,  and  a  verdict  if  in  case  of  a  trial  by  jury,  for  ten  per  cent, 
damages,  in  addition  to  the  interest  now  allowed  by  law,  upon 
the  amount  of  money  so  recovered  or  decreed,  and  also  upon  the 
worth  of  property  in  case  of  a  specific  legacy. 

The  above  rule,  as  to  damages  in  case  of  a  recovery,  shall  apply 
to  suits  by  distributees  against  administrators,  and  wards  against 
guardians.     How.  &  H.  421. 

§  28,  Actions  of  account  may  be  brought  and  maintained  a- 
gainst  the  executors  or  administrators  of  every  guardian,  bailiff 
and  receiver,  and  also  by  one  joint  tenant  or  tenant  in  common, 
his  executors  or  adminstrators,  against  the  other  as  bailiff,  for  re- 
ceiving more  than  comes  to  his  just  share  or  proportion,  and  a- 
gainst  the  executors  or  administrators  of  such  joint  tenant  or  ten- 
ant in  common.     How.  &  H.  547. 


480  GUARDIAN  AND  WARD.  [CH.  LXIII. 

§  29.  Of  the  several  species  of  guardians,  the.rc  are — 
1st.  Guardians  by  nature,  the  father,  and  (in  some  cases,)  the 
mother  of  the  child.    See  2  Root,  320.    At  common  law  the  fa- 
ther is  guardian,  and  must  account  for  profits  to  his  child. 

2d.  Guardians  for  nurture — which  are  the  father  or  mother, 
till  the  age  of  14  years — (see  ante.  sec.  4,  p.  467) — and  for  want 
of  either,  the  Ordinary  appoints.  This  species  extends  only  to 
the  person  of  the  ward.    7  Wend.  354;  6  Conn.  494. 

3d.  Guardians  in  socage,  (the  kind  by  which  our  statute — sec. 
1,  p.  466 — regulates  the  duties  of  a  guardian  in  Mississippi,)  or 
guardians  at  common  law.  This  species  of  guardianship  exists 
where  the  ward  has  some  estate  in  lands,  when,  by  the  common 
law,  the  guardianship  devolves  on  the  next  of  kin,  to  whom  the 
inheritance  cannot  possibly  descend.  Such  guardianship  contin- 
ues only  till  the  minor  is  14  years  of  age.*  (See  sec.  13.)  At 
the  age  of  14  years,  a  minor  may  choose  a  guardian,  unless  his 
father,  (as  he  may  do,)  has  appointed  a  guardian  by  testament, 
which  constitutes,  what  is  called — 

4th.  A  testamentary  guardian.  Tucker's  Commentaries  on 
Blackstone,  Book  1,  p.  133.    See  ante,  page  466. 

§  30.  By  the  law  of  North-Carolina,  no  one  has  a  right  to  the 
guardianship  of  an  infant,  except  as  testamentary  guardian,  or  as 
appointed  by  the  father  by  deed,  or  by  the  county  or  superior 
court — (here,  the  court  of  probate.)     See  sec.  4,  p.  467,  ante. 

The  appointment  of  guardian  by  the  court,  is  a  matter  of  sound 
discretion  to  the  court  making  the  appointment,  and  another 
€ourt  will  not  rescind  the  appointment  without  being  satisfied 
that  injury  is  likely  to  result  from  it,  to  the  person  or  the  estate 
of  the  orphan.    2  Murphy,  122. 

In  North-Carolina,  the  court  is  not  bound  to  appoint  as  guar- 
dian the  next  of  kin,  or  the  person  chosen  by  the  minor  above  14 


*Judgc  Tucker  says  in  his  Commentaries,  "Guardianship  in  socage  cannot  in 
strictness  exist  in  Virginia;  and  that  though  the  act  of  Assembly — 1  R.  C.  108, 
S.  I,  4 — speaks  of  guardians  in  socage.,  yet  the  allusion  to  them  has  probably  pro- 
ceeded from  inadvertently  copying  the  provisions  of  ante-revolutionary  statutes, 
without  a  due  attention  to  the  change  cflected  by  our  laws.  Tucker's  Com.  B.  1, 
p.  133.  (Our  act  is  a  copy  of  the  Virginia  act.)  If  no  other  guardian  is  then  ap- 
j)ointed,  this  continues.     5  John.  66. 


CH.  LXIII.]  GUARDIAN  AND  WARD.  481 

years  of  age,  but  may  and  ought  to  appoint  the  person,  who  in 
their  discretion,  they  believe,  will  best  execute  the  duties  of  the 
appointment.     1  Murphy,  231. «  Sec.  4,  p.  467. 

The  executor  has  no  prior  right  to  the  guardianship  of  the  teV 
tator's  child,  but  on  the  contrary  is  a  very  improper  person  for 
that  trust.  The  mother  is  the  natural  and  (when  not  unworthy,) 
the  most  suitable  person  to  be  appointed  statutory  guardian.  3 
Dana,  600;*  3  Yerger's  R.  336;  Coxe,  397.  A  widow,  being  her 
late  husband's  executor,  her  child's  grand-father  will  be  appointed 
guardian  rather  than  he  who  has  married  the  widow.  4  Hayw. 
30.  If  a  mother  while  she  is  sole  refuses  to  act  as  natural  guar- 
dian, and  on  her  refusal  a  guardian  is  appointed,  she  may,  after 
her  marriage  and  while  she  is  covert,  (the  guardian  appointed 
having  died)  accept  of  and  undertake  such  guardianship.  5  Gill. 
&  John.  27. 

When  the  father  of  the  minor  is  living,  or  if  not  and  a  former 
guardian  has  been  appointed,  the  court  has  no  right  to  appoint 
another,  the  first  never  having  renounced  nor  been  removed — 6 
Yerger,  458 — unless  the  ward  has  reached  the  age  of  14  years, 
and  chooses  a  guardian,  which  of  itself  will  supersede  the  first. 
3  Dana,  599;  1 1  Ohio  R.  442.  (See  ante.  sec.  13,  p.  471,  for  stat- 
ute of  Mississippi.)  In  the  latter  case  the  acts  of  the  first  are  af- 
terwards void.t    Ibid. 

The  appointment  by  will  of  an  executor  as  guardian,  who  acts 
as  executor  for  six  years,  but  never  qualifies  as  guardian,  and  then 
renounces  the  guardianship,  does  not  thereby  render  him  guar- 
dian up  to  that  time.    1  Humph.  210. 

§  31.  The  county  court  of  the  county  in  which  the  ward  is  ac- 
tually domiciled,  has  jurisdiction  to  appoint  a  guardian  for  him. 
3  Dana,  599.  (See  sec.  4,  p.  467,  stat.  Miss.)  See  2  M'Cord's  Ch. 
R.446. 


*The  mother  of  a  bastard  child  is  its  natural  guardian.  At  marriage  it  devolves 
on  her  husband,  and  recurs  to  her  after  his  death.    2  Mass.  109. 

tA  county  court  in  Virginia  having  appointed  a  guardian  for  an  infant  whose 
father  was  living,  this  court  in  comity  presumes  that  the  appointment  was  legal, 
and  sustains  a  payment  made  to  such  guardian  as  a  good  payment  to  the  infant. 
5  Dana,  570. 

61 


482  GUARDIAN  AND  WARD.  [CH.  LXIII. 

An  appointment  without  regular  notice,  is  voidable  only,  and 
not  void.  2  Aik.  394.  (See  sec.  4,  p.  467,  ante,  law  of  Missis- 
sippi.) 

The  motion  to  appoint  should  be  in  writing,  naming  the  per- 
son proposed,  and  stating  his  consent  to  be  appointed.  3  Day, 
279.* 

A  person  having  no  interest  in  the  subject,  should  be  appoint- 
ed guardian.     12  Mass.  16, 19. 

§  32.  When  from  the  facts  an  executor,  who  was  also  guardian, 
might  be  charged  with  a  receipt  of  moneys  either  as  executor  or 
guardian,  he  must  account  in  the  latttr  character.  For  whatever 
funds  he  had  in  his  hands  as  executor,  were  by  operation  of  law, 
transferred  to  him  as  guardian.  2  Hill's  Ch.  R.  285.  And  as  ex- 
ecutor he  may  credit  in  his  accounts  the  balance  remaining  in 
his  hands  as  guardian.    2  Bailey's  R.  60. 

But  where  no  change  in  the  manner  of  holding  appears,  he 
will  be  considered  as  holding  in  the  character  of  administrator, 
and  the  sureties  on  his  administration  bond  will  be  liable.  1 
Dana's  R.  514.  Yet  where  more  than  two  years  had  elapsed 
since  the  grant  of  administration,  hdd,  it  was  his  duty  to  retain  as 
guardian,  and  the  law  will  presume  he  did  so.  6  Yerger,  220;  6 
Dana,  5;  ib.  60.t 

A  widow,  guardian  of  her  husband's  children,  and  holding  all 
his  slaves  as  widow  or  as  guardian,  she  and  her  securities  on  her 
guardian  bond,  are  liable  for  all  except  her  life  estate  in  one-third. 
But  she  and  her  sureties  may  have  been  exonerated  by  the  deliv- 
ery of  all,  except  her  third,  to  the  subsequent  guardian.  And  as 
the  latter  was  bound  to  obtain  possession  of  his  wards'  slaves,  he 
and  his  sureties  may  be  liable  with  the  first  guardian  and  her 


♦The  appointment  of  a  guardian  in  No.  Carolina,  being  a  matter  of  discretion, 
cannot  be  revised  by  the  supreme  court.    4  Dev.  294.    (See  ante.  p.  37.) 

But  the  removal  of  a  guardian,  if  on  improper  or  insufficient  grounds,  or  if  the 
court  had  not  jurisdiction,  is  a  subject  of  appeal.    3  Dana's  R.  600. 

t  Where  A.  administered  on  an  estate,  and  became  guardian  of  several  minor 
heirs  of  the  estate,  executing  separate  guardian  bonds,  and  the  heirs  filed  a  bill 
against  him  in  equity  as  administrator  and  guardian — Held:  A.'s  liability  as  guar- 
dian, was  separate  and  independent,  and  he  could  not  be  sued  in  both  capacities 
in  the  same  action.     1  How.  365. 


CH.  LXIII.]  GUARDIAN  AND  WARD.  483 

sureties,  or  alone,  and  are  necessary  parties  to  a  bill  by  the  dis- 
tributees claiming  the  slaves  or  their  value.    6  Dana,  83. 

BOND. 

§  33.  A  guardian's  bond  executed  by  an  acting  justice  of  the 
peace,  to  "A.  B.  and  the  rest  of  the  justices,  &c."  is  nugatory.  2 
Dev.  6.  And  a  bond  payable  to  the  "Justices  of  the  Caswell 
county  court,  &c."  is  void  at  common  law,  because  they  are  not 
a  corporation.    Ibid.    (See  sec.  5,  p.  468.) 

In  Virginia,  a  guardian's  bond  must  be  executed  in  open  court, 
and  not  in  the  clerk's  office.  2  Munf.  492.  It  is  a  judicial  act, 
and  only  the  judge  can  determine  the  sufficiency  of  the  sureties 
on  the  bond.    Ibid. 

The  bond  of  a  father  appointed  guardian  of  his  own  children 
by  a  county  court,  when  they  had  no  authority  to  make  such  an 
appointment,  is  invalid  as  a  statutory  bond.  Yet  it  may  be  en- 
forced in  equity,  and  for  all  the  purposes  for  which  it  was  intend- 
ed, though  the  commonwealth  is  the  obligee,  and  the  wards  no 
parties  to  the  bond.    5  Dana,  224. 

As  to  the  bonds  required  of  guardians  in  Mississippi,  in  diflfer- 
ent  cases,  see  ante.  sec.  5,  p.  468;  sec.  14,  p.  471;  sec.  18  and  19, 
p.  473;  sec.  20,  p.  474;  sec.  22,  pp.  475-76;  sec.  23,  p.  477. 

A  guardian's  bond,  in  Virginia,  need  not  state  in  the  condition, 
the  appointment  of  the  guardian.*    1  Call,  333. 

As  soon  as  a  guardian  appointed  by  the  county  court  has  giv- 
en the  required  bond,  the  appointment  is  consummated,  and  can- 
not be  revoked  without  notice  to  the  guardian.  3  Dana,  600;  8 
Pick.  528.  And  till  a  second  guardian  gives  a  bond,  the  author- 
ity of  the  first  is  not  revoked.    Ibid.    (See  sec.  5,  p.  468.) 

A  guardian  applying  for  an  order  to  sell  the  real  estate  of  his 
wards,  is  required  by  the  statute  of  1813,  (in  Kentucky,)  to  give 
bond  for  the  faithful  performance  of  the  trust  before  the  decree  is 
rendered ;  and  also  to  report  his  proceedings  under  the  decree,  to 


•Where  the  gaardian  intended  to  remove  from  the  state  with  her  wards,  the 
court  required  her  before  entering  on  her  appointment,  to  give  bond  for  the  re- 
turn  of  one  of  them  at  a  suitable  age  to  receive  her  education  in  this  state;  and 
of  both,  when  required  by  the  court.  2  Hill's  Ch.  R.  71 .  As  to  removal  of  ward's 
property  by  guardian,  see  sects.  21,  22,  pp.  475-76. 


484  GUARDIAN  AND  WARD.  [CH.  LXUI, 

the  court.  1  Dana,  382.  (See  ante.  sec.  17,  p.  295,  and  sec.  23^ 
p.  477.) 

An  ordinary  bond  of  a  guardian  renders  him  and  his  sureties 
liable  to  the  wards,  for  every  obligation  resulting  from  acts,  which 
he  was  legally  authorised  to  perform ;  and  if,  when  the  bond  was 
executed,  he  was  authorised  to  sell  their  lands,  it  secures  the  pro- 
ceeds to  them.  1  Dana,  368.  (But  see  4  Dana,  630,  by  which  it 
appears  this  results  from  the  statute  of  1813,  in  Kentucky,  re- 
specting sale  of  lands.) 

A  bond  given  by  a  guardian  on  settlement  with  his  ward,  after 
she  comes  of  age,  is  no  discharge  of  the  guardian's  bond  pre- 
viously given,  nor  can  it  be  given  in  evidence  under  the  plea  of 
ccmditions  performed,  in  bar  of  the  specialty.  It  is  merely  prima 
facie  evidence  of  what  is  due.*    6  Rand.  574. 

ACTION  ON   BOND. 

§  34.  In  New- York,  no  action  can  be  maintained  on  a  guar- 
dian's 5ond,  until  the  guardian  has  been  called  to  account  in  the 
court  of  chancery.  19  John.  304.  See  also  1  Greenl.  186;  3  M'- 
Cord,237;  2N.Hamp.395;  1  Watts,  229;  3Yerg.46L 

In  Connecticut,  a  guardian  is  not  liable  to  an  action,  on  his 
bond^  by  his  ward,  until  he  has  been  called  on  by  the  probate 
court  to  account,  and  has  refused.!     1  Root,  51. 

An  action  cannot  be  sustained  on  a  guardian's  bond,  executed 
before  the  passage  of  the  Kentucky  statute  of  1813,  authorising 
sale  of  infant's  land,  for  the  proceeds  of  a  sale  made  under  that 
act.    4  Litt.  1. 

A.  having  intermarried  with  B.  who  was  the  administratrix  of 
C,  the  personal  estate  of  C.  came  into  his  hands  and  possession ; 


♦The  sureties  in  a  guardian's  bond  are  not  released  from  their  responsibilty  to 
the  ward,  where  on  their  application  to  the  court  for  counter  security  a  new  bond 
is  executed  with  other  sureties,  although  the  court  ordered  that  such  sureties 
should  be  released.  6  Har.  &  John.  98.  In  Kentucky,  if  a  guardian  on  entering 
into  bond  to  indemnify  the  first  sureties,  execute  a  second  bond  with  surety,  the 
county  court  can  accept  the  latter  and  exonerate  the  former.  5  J.  J.  Marshall, 
617.  CSee  ante.  p.  474,  and  sec.  9,  p.  248,  for  rule  in  Mississippi) — and  see  sec. 
12.  p.  470. 

tUntil  the  relation  of  guardian  and  ward  is  determined,  no  action  lies  in  favor 
of  the  guardian  against  the  ward  for  advances  to  the  latter.  7  Ham.  (part  2d,) 
104. 


CH.  LXIIl.]  GUARDIAN  AND  WARD.  485 

and  upon  a  settlement  of  their  administration  account,  a  distribu- 
tive share  of  the  balance  against  them  was  due  to  D.,  to  whom  A. 
was  appointed  guardian.  In  an  action  on  A.'s  bond  as  guardian, 
it  was  held  that  B.  and  her  sureties  on  the  estate  of  C,  were  re- 
leased from  all  responsibility  on  account  of  it,  and  A.  and  his 
sureties  became  responsible  on  his  guardian's  bond.  6  Har.  & 
John.  162. 

A  suit  may  be  maintained  on  a  guardian's  bond  for  not  deliv- 
ering up  the  property  of  the  ward,  though  no  order  has  been  made 
by  the  court  to  that  eifect.    5  Gill.  &  John.  27. 

An  action  lies  upon  a  guardian's  bond  against  the  surety,  with- 
out any  previous  suit  against  the  principal.  1  Call,  333;  5  Gill. 
&  John.  27. 

Where  the  legal  effect  of  a  guardian's  bond  is  several,  a  sepa- 
rate suit  may  be  maintained  for  the  benefit  of  each  ward.  5  J.J. 
Marshall,  286. 

In  an  action,  (in  Maryland)  in  the  name  of  the  state  against  the 
obligee  in  a  guardian's  bond,  the  non-age  of  the  ward  who  was 
over  16  years  of  age,  was  held  no  defence,  and  not  the  fit  subject 
for  a  plea.    3  Gill.  &  John.  103. 

In  an  action  of  debt  on  a  guardian's  bond  dated  in  1797,  plain- 
tiff proved  by  a  witness  that  land  of  the  plaintiff,  during  his  mi- 
nority, was  rented  by  the  guardian  to  witness  in  1791,  and  that 
the  rent  was  afterwards  lessened  in  consequence  of  an  agreement 
between  them,  that  the  witness  should  take  charge  of  the  stock  on 
the  defendant's  land — Held,  such  evidence  was  inadmissible.  2 
Harr.&J.244. 

In  an  action  upon  the  bond  of  a  guardian  appointed  by  the 
court,  brought  for  the  use  of  the  ward,  the  mere  fact  that  a  natural 
guardian  was  in  existence,  at  the  time  of  the  guardian's  appoint- 
ment, does  not  invalidate  the  appointment,  so  as  to  render  the 
bond  a  nullity.    3  Oill.  &  John.  103. 

And  where  the  condition  of  the  bond  recited  that  A.  is  guar- 
dian, &c.,  and  he  has  obtained  possession  of  the  goods,  neither 
the  principal  obligee  nor  the  surety,  in  an  action  upon  such  bond, 
can  deny  that  he  was  guardian  in  the  face  of  such  recital,  nor  set 
up  as  a  defence,  any  supposed  irregularity  in  obtaining  his  ap- 
pointment.   Ibid. 


486  GUARDIAN  AND  WARD.  [CH.  LXIII. 

In  debt  on  a  guardian's  bond,  it  is  sufficient  if  the  breaches  are 
assigned  in  the  replication,  and  it  is  not  error  that  the  declaration 
is  on  the  penalty  merely.    2  Stew.  370. 

An  action  on  a  guardian's  bond  must  be  brought  in  the  name 
of  the  judge  of  the  county  court,  in  Alabama,  for  the  use  of  the 
person  injured;  and  the  origin  of  such  person's  interest  need 
not  be  alleged.  Ibid.  See  sect.  5,  p.  468,  and  sect.  8,  pp.  242, 
243. 

REVOCATION  OP  GUARDIANSHIP. 

§  35.  A  mere  stranger  cannot  move  in  the  court  of  probates 
for  the  revocation  of  letters  of  guardianship.     1  How.  73,  295. 

A  guardian  is  entitled  to  notice  of  an  intended  motion  to  re- 
move him.*    3  Dana,  599;  7  Yerg.  143. 

And  the  record  must  recite  the  proceedings.  Ibid.  (See  ante. 
sect.  7,  p.  8. 

A  guardian  cannot  maintain  a  bill  to  recover  the  estate  of  his 
wards,  after  they  are  of  age.    3  Dana,  439;  4  Call.  250. 

So,  on  the  marriage  of  a  female  ward  under  age,  the  authority 
of  the  guardian  ceases.  10  Yerg.  161 — (See  ante.  sec.  13,  p.  471; 
2  How.  R.  893,  for  law  of  Mississippi.) 

A  guardian,  appointed  by  the  court,  without  limitation  of  time, 
while  the  minor  is  not  of  sufficient  age  lawfully  to  choose  for  him- 
self, will  hold  until  he  arrives  at  full  age,  unless  the  guardian  be 
removed  from  office,  or  another  be  chosen  to  the  acceptance  of  the 
court.    Kirby,  286. 

A  county  court  (in  Tennessee,)  may  displace  a  guardian  when 
they  deem  it  necessary  to  the  interest  of  the  ward.  3  Yerg.  336. 
And  the  order  of  the  court  need  not  recite  the  cause  for  which 
he  was  removed.  7  Yerg.  145.  See  ante.  sect.  7,  p.  469,  and 
see  sect.  3,  p.  467. 

Where  it  appeared  that  a  guardian  failed  to  return  his  account, 
employed  the  slaves,  &c.  of  his  ward  in  his  own  service,  kept  his 
own  stock  on  his  ward's  land  and  fed  them  on  his  ward's  com — 
held,  this  was  sufficient  cause  of  removd.     1  Stew.  166. 


^An  order  for  the  removal  of  a  guardian  is  the  subject  of  an  appeal.    3  Dana, 
600. 


CH.  LXIII.]  GUARDIAN  AND  WARD.  487 

GUARDIAN,    AD  LITEM. 

•  §  36.  The  duty  of  watching  over  the  interests  of  infants  de- 
volves in  a  considerable  degree  on  the  courts.  The  court  may  ap- 
point as  guardian  to  defend  the  suit,  one  who,  though  usually  the 
nearest  of  kin  not  interested  in  the  subject,  may  be,  while  the  pa- 
rents live,  a  person  not  appearing  from  his  name,  or  shown  on  the 
record,  to  be  connected  with  them.  8  Peters,  128.  But  a  guar- 
dian ad  liteniy  must  be  a  real  and  not  a  fictitious  person.  2  Cow- 
en,  430. 

A  guardian  ad  litem,  appointed  to  prosecute  an  appeal  on  be- 
half of  an  infant,  is  not  obliged  to  accept  the  appointment ; — and 
a  reasonable  time  will  be  allowed  him  to  consider  whether  he 
will  accept  it,  and  to  prepare  for  trial.    2  Munf.  342. 

A  general  guardian  cannot  act  for  infants  on  a  petition  for  par- 
tition.    1  John.  509. 

A  guardian  ad  litem,  is  not  competent  to  bind  his  ward,  by  a 
release,  to  qualify  a  witness.    4  Verm.  523. 

POWERS  OF   GUARDIAN. 

§  37.  Generally  those  acts  of  the  guardian  are  binding  on  the 
infant,  which  are  for  the  infant's  benefit,  and  for  which  the  guar- 
dian can  account  He  may  therefore  in  a  suit  brought  for  the 
benefit  of  his  wards,  execute  a  release  in  order  to  render  a  witness 
competent.     1  Hill's  Ch.  R.  409. 

They  may  lawfully  submit  to  arbitrators  questions  and  contro- 
versies respecting  the  property  and  interests  of  his  wards.  2  Fair- 
fax, 326;  12  Connt.  376.  But  an  award  on  such  submission  by 
the  guardian,  is  (in  Massachusetts,)  voidable  by  the  infant  on  his 
coming  of  age.     1  Pick.  21 . 

For  the  powers  of  a  guardian  over  the  estate  real  and  personal 
of  his  wards,  in  Mississippi,  see  ante.  sec.  1,  p.  466;  sec.  6,  p.  468; 
sec.  8  &  9,  p.  469;  sec.  10,  p,  470;  sec.  14,  p.  471 ;  sec.  15,  p.  472; 
sec.  18,  p.  473;  sec.  22,  p.  475;  sec.  23,  p.  477;  sec.  24,  p.  478; 
sec.  25,  26,  p.  479. 

A  guardian  may  purchase  for  his  ward  who  is  one  of  the  heirs 
of  the  estate,  such  portion  of  the  estate  as  the  other  heirs  refused 
to  take  in  a  partition,  and  the  orphans'  court  has  ordered  to  be 
sold.    3  Watts,  369. 


488  GUARDIAN  AND  WARD.  [CH.  LXIII. 

LEASE    OF    LAND. 

§  38.  A  lease,  made  by  the  guardian  for  nurture  or  by  nature, 
of  the  infant's  land,  whether  made  in  the  name  of  the  guardian, 
or  of  the  infant,  is  void.  9  Yerg.  463;  10  ib.  10.  Such  guardian 
can  only  take  charge  of  the  person,  and  education  of  the  infant, 
and  has  no  authority  over  his  real  estate.  Ibid.  1  N.  &  M.  369. 
But  as  estoppel  must  be  mutually  binding,  such  lease  would 
therefore  not  estop  the  lessees  from  disavowing  the  lease,  or 
from  setting  up  a  title  in  themselves,  or  from  holding  of  a  third 
person. 

It  is  the  duty  of  a  guardian  of  the  property  of  an  infant,  to  rent 
his  ward's  land.  When  it  has  been  rented,  he  will  be  charged 
with  the  amount  he  received ;  and  when  not  rented  out,  he  must, 
in  cases  where  it  could  have  been  rented,  be  charged  with  its  es- 
timated value.    10  Yerger,  161. 

A  guardian  in  socage  may  lease,  avow,  and  bring  trespass,  in 
his  own  name.  5  John.  66.  He  is  entitled  to  the  custody  of  the 
land,  and  to  the  profits,  for  the  benefit  of  the  heirs.  Ib.  They 
may  lease  land  to  try  titles.    4  Gill  &  John.  323. 

In  Virginia,  a  guardian  may  lease  the  lands  of  his  ward  dur- 
ing infancy,  (if  the  guardianship  so  long  continue,)  and  may  re- 
serve the  rents  to  the  ward  or  to  himself.  And  payment  of  the 
rent  in  either  case,  to  the  guardian  would  be  good.  1  Wash.  87. 
A  lease  for  a  longer  term  than  infancy,  is  void.    4  Call,  250. 

In  Mississippi,  guardians  whether  testamentary  or  appointed  by 
the  court,  are  entitled  to  the  custody  of  the  estate  real  and  person- 
al of  their  wards.  (Sec.  1,  p.  466,  and  sec.  6,  p.  468.)  And  he 
may  cultivate  the  same,  or  lease  the  same  for  a  term,  not  exceed- 
ing three  years,  and  within  the  non-age  of  the  ward.  Sec.  8,  p. 
469. 

In  Virginia,  a  guardian  has  possession  of  the  ward's  lands,  during 
guardianship ;  and  therefore  he  may  maintain  trespass  for  enter- 
ing the  ward's  land  and  cutting  or  carrying  away  trees  without 
license ;  and  he  is  accountable  to  his  ward  for  the  damages  re- 
covered. 6  Rand.  566.  But,  if  done  with  guardian's  permission, 
the  wrong  must  be  compensated  by  the  guardian  to  the  ward.  Ib. 
See  ante.  sec.  8,  p.  469,  and  sec.  15,  p.  472. 


OH.  LXIII.]  GUARDIAN  AND  WARD.  489 

§  39.  A  guardian  may,  and  is  bound  to  maintain  and  educate 
jiis  wards,  to  the  extent  of  the  income  of  their  estate.  See  ante, 
sec,  9,  p.  469,  for  rule  in  Mississippi, 

Where  the  sum  of  money  allowed  by  the  orphans'  court  to  a 
guardian,  for  the  maintenance  and  education  of  his  ward,  exceed- 
ed the  annual  income  of  his  ward's  estate — Held:  in  an  action  a- 
gainst  the  guardian  by  his  ward,  the  guardian  was  concluded 
thereby,  and  the  jury  could  not  exceed  the  sum  so  allowed  to  him. 
-3  Harr.  &  John.  251.* 

Where  the  husband  dies  leaving  a  widow  and  infant  children, 
-and  she  enters  on  the  land  of  which  her  husband  was  possessed, 
it  will  be  intended  that  she  was  in  possession  by  right,  and  that 
she  entered  as  guardian  in  socage,  where  the  entry,  and  percep- 
tion of  profits,  are  unaccompanied  with  acts  or  declarations  incon- 
sistent with  that  character.    7  John.  157. 

It  is  proper,  in  some  cases,  for  the  father,  who  is  guardian  of 
his  own  children,  to  be  allowed  to  use  their  own  means  for  their 
support  and  education.    3  B.Monroe's  R.  161. 

A  chancellor  would  require  a  strong  case  to  be  made  out  to  in- 
duce his  interference  to  restrain  a  guardian  in  expenditures  for  the 
education,  &c.  of  his  ward,  within  the  income  of  the  estate,  and 
sanctioned  by  the  friends  and  near  relations  of  the  ward.  4  B. 
Monroe,  321. 

And  a  case  still  stronger,  to  render  the  sureties  of  the  guardian 
personally  liable  after  such  expenditure  had  been  made,  with  the 
sanction  of  the  mother  and  friends.     Ibid. 

But  a  guardian  is  not  authorised  to  break  in  upon  the  capital 
■of  his  ward  for  his  maintenance,  except  under  peculiar  circum- 
stances. And  if  the  guardian  advances  beyond  the  income,  as  a 
general  rule,  he  will  not  be  allowed  interest  on  a  balance  due  for 
maintenance.    2  M'Cord's  Ch.  R.  58. 


♦Where  a  father  died  intestate,  leaving  a  large  real  and  personal  estate,  and 
hie  infant  children  were  maintained  by  their  mother — Held:  the  mother  was  not 
bound  to  maintain  the  children  out  of  her  third  of  the  estate,  but  was  entitled  to 
be  allowed  out  of  the  portion  of  the  infants'  for  their  maintenance,  during  their 
infancy,  as  well  for  the  time  past  as  to  come.  That  she  was  to  be  charged  with 
interest  on  two-thirds  of  the  money  received  by  her,  while  manaeing  the  estate, 
^ind  be  allowed  interest  on  all  sums  expended  by  her.    6  John.  566. 

62 


490  GUARDIAN  AND  WARD.  (cH.  LXIII. 

When  the  income  is  insufficient,  he  must  obtain  an  order  of 
court,  authorising  sale  of  a  portion  of  the  ward's  property.  See 
arUt.  sec.  9,  p.  469. 

A  properly  constituCed  guardian  is  entitled  to  receive  money 
due  to  an  infant.  1  Bailey,  203.  Payment  to  the  ward's  father 
(illegally  appointed,)  will  not  exonerate  the  executor,  unless  the 
ward  adopts  the  act.  The  executor  should  have  a  receiver  ap- 
pointed by  a  court  of  equity,  or  retain  the  fund  till  such  appoint- 
ment is  made,  and  the  executors  will  remain  liable,  although  the 
wards  may  attempt  to  enforce  a  lien  on  land,  in  which  their  mon- 
ey has  been  invested,  and  is  a  proper  party  to  a  suit  for  that 
object.    5  Dana,  22,4. 

Where  a  promissory  note  payable  to  a  person  Tion  compos  men- 
tis, was  paid  by  the  promissor  to  the  person  non  compos,  with 
'  knowledge  of  the  existing  guardianship,  such  payment  was  held 
to  be  of  no  effect,  and  the  letter  of  guardianship  to  be  conclusive 
evidence  of  the  ward's  unsound  mind.     1.4  Pick.  280.* 

Payment  of  a  judgment  or  decree  to  the  guardian  by  nature,  is 
no  discharge.  10  Yerger,  10.  Such  guardian  has  care  only  of 
the  person  of  the  ward.  Ibid.  3  Pick.  213;  4  Gill.  &  John. 
323. 

Where  the  commissioner  under  an  order  of  the  court  to  deliver 
to  the  guardian  the  portion  of  the  wards,  whether  in  money  or  in 
bonds,  delivered  up  the  guardian's  bond,  given  for  purchases,  on 
sales  for  partition — this  is  no  discharge  of  a  bond,  nor  a  satisfac- 
tion of  the  mortgage  to  secure  it.  And  the  defendant  with  a 
knowledge  of  the  facts,  taking  a  mortgage  from  the  guardian  of 
the  property  purchased,  takes  subject  to  the  equity  of  the  wards. 
1  Hill's  Ch.  R.  574.t 


♦Whether  a  payment  of  a  judgment  to  a  ^T^zrdianod /lYem  is  valid,  query?  10 
Yerger,  10. 

tin  So.  Carolina,  a  court  of  chancery  may  order  funds  to  be  paid  to  a  foreign 
guardian,  on  ascertaining  the  guardian's  appointment,  fitness,  and  the  sufBciency 
of  his  sureties.     1  Hill's  Ch.  R.  141. 

In  Maryland,  a  guardian  appointed  in  another  state,  cannot,  by  virtue  of  such 
appointment,  exclusively  act  as  guardian  in  the  former  state  in  respect  to  property 
lying  there,  and  under  the  control  of  their  orphans'  court.  4  Gill.  &  John.  332- 
(For  rule  in  Mississippi,  see  2  Sm.  &  M.  532,  and  ante.  sec.  18,  p.  473.)  . 


CH.  LXIII.J  GUARDIAN  AND  WARD.  491 

The  purchaser  of  an  infant's  estate  from  the  guardian,  pays  the 
money  either  to  the  guardian  or  the  ward,  at  the  risk  of  the  ward's 
disaffirmance  of  the  contract.    4  Dana,  633* 

If  the  guardians  of  a  minor,  in  a  deed  of  conveyance  covenant 
in  their  capacity  as  guardians,  that  the  father  of  the  minor  died 
seized  of  the  premises,  and  that  they  as  guardians,  in  right  of 
the  minor  heirs  were  lawfully  seized  of  the  premises — Held:  the 
guardians  were  personally  liable  on  these  covenants.  15  Pick. 
428. 

PROFITS.  * 

An  executor  is  not  allowed  to  trade  upon  or  make  profit  for 
himself  out  of  the  estate  in  his  custody,  nor  out  of  the  rights  of 
those  interested  in  it.  A  contract  by  which  the  executor  buys 
the  ward's  interest  in  the  estate  of  his  guardian,  will  not  be  sus- 
tained or  respected,  but  the  sum  paid  for  the  purchase  will  be 
deemed  a  payment  on  account  of  the  ward's  claim,  for  which  the 
executor  will  be  entitled  to  a  credit,  with  interest  on  it,  if  paid 
before  it  was  due.    5  Dana,  570. 

And  if  a  guardian  purchase  land  with  the  money  of  his  wards, 
they  may  elect  to  take  land  absolutely  at  what  it  cost,  or  they 
may  consider  it  as  a  security  for  the  money.    lb.  323.1 

But  a  court  of  equity  will  sanction  such  use  of  a  ward's  funds 
by  his  guardian,  as  it  would  have  directed,  if  a  previous  applica- 
tion had  been  made ;  and  though  the  will  may  have  directed  the 
rents  to  be  let  out  till  the  youngest  child  comes  of  age,  and  then 
divided  among  the  children,  the  court  will  direct  that  they  shall 
be  applied  to  his  support  and  education,  in  the  mean  time,  if  they 
are  required  for  that  purpose.    5  Dana's  R.  593. 

Where  a  guardian  imported  into  Maryland,  contrary  to  law,  a 
slave  belonging  to  the  minor — Held:  such  act  did  not  entitle  the 


*A  guardian,  his  wards  and  others  being  tenants  in  common,  a  contract  sign- 
ed by  the  guardian  and  wards  stipulating  to  convey  "our  interest"  in  the  land, 
imposes  no  obligation  on  him  or  his  wards,  for  their  title.    1  Dana,  367. 

tA  ward  cannot  by  purchasing  a  paramount  title,  overreach  a  lien  given  by  hii 
guardian,  on  real  estate  claimed  by  and  in  possession  of  the  ward,  as  inherited 
from  the  ancestor.    2  Ohio  R.  408. 


492  GUARDIAN  AND  WARD.  [CH.  LXllI^ 

slave  to  his  freedom,  though  the  minor  assented  to  such  act  dur- 
ing his  minority.    3  Harr.  &  John.  557, 

CONTRACT  BY  GUARDIAN. 

A  guardian  cannot  by  his  contract  bind  the  person  or  estate  of 
his  ward — 6  Mass.  58;  1  Pick.  314 — Nor  avoid  a  beneficial  con- 
tract made  by  his  infant  ward. — 13  Mass.  237.  He  is  a  mere  a- 
gent  of  the  ward,  having  a  naked  power  without  an  interest.  7 
Mass.  1 ;  13  Pick.  306.  He  can  do  no  act  to  the  injury  of  his  ward. 
10  John.  438. 

In  South-Carolina,  a  guardian  is  not  liable  except  on  express 
contract  for  medical  attention  to  his  ward.     1  Bailey,  344. 

Where  the  guardian  is  morally,  though  perhaps  not  legally 
bound  to  make  good  a  loss  which  his  ward  has  suffered,  a  prom- 
issory note  executed  by  him  to  his  ward,  for  the  amount  of  the 
loss,  is  a  sufficient  consideration,  and  is  binding  on  him.  9  Yer- 
ger,  418. 

A  guardian  agrees  to  pay  the  ward's  mother  a  certain  sum  for 
their  support,  as  he  is  personally  liable  for  it,  it  is  no  defence 
that  he  has  exhausted  their  estate  in  paying  their  debts.  5  Dana, 
107. 

A  guardian  is  not  liable  on  a  contract  made  by  his  ward,  for 
board  and  tuition  of  the  latter,  although  he  knew  his  ward  had 
made  the  contract,  and  he  did  not  give  notice  of  his  dissent  from 
it— 1  Hill's  R.  (S.C.)  279;  1  Bailey,  344— even  though  it  be  for 
necessaries.    Ibid. 

And  a  promise  by  a  guardian  to  pay  a  debt  contracted  by  his 
ward,  is  an  original  and  not  a  collateral  undertaking  within  the 
statute  of  frauds,  and  need  not  be  in  writing.     1  Bailey's  R.  419. 

A  deed  by  a  guardian,  of  her  infant's  or  ward's  interest  in  real 
estate,  does  not  convey  the  guardian's  right  of  dower.  10  S.  &  R. 
326. 

If  a  guardian  consent  to  the  misapplication  of  the  ward's  mon- 
ey, by  his  co-guardian,  he  is  liable.     11  S.  &  R.  66.* 


♦Where  an  infant  residing  with  hiB  mother,  in  one  probate  district,  inherited 
from  her  father  real  estate  lying  in  another  district,  the  probate  court  of  which 
appointed  a  guardian  to  her;  and  the  person  thus  appointed  took  possession  of  her 
estate  and  supported  her  till  a  certain  period,  when  he  refused  to  support  her,  but 


CH.  LXHI.]  GUARDIAN  AND  WARD.  493 

CONTRACT   BY  INFANT. 

An  infant,  who  has  a  guardian  or  parent,  who  supplies  his  wants, 
cannot  bind  himself  for  necessaries.  4  Watts,  80;  9  John.  141; 
3  M'Cord,  6.*  It  might  be  better  said  that  if  the  guardian  or  fa- 
ther supplies  his  wants,  articles  sold  to  the  ward,  cannot  be  ne- 
cessaries ;  but  there  can  be  no  doubt,  that  a  ward  not  under  the 
care  of  his  parent  or  guardian,  who  is  not  thus  supplied,  may 
render  himself  liable  for  necessaries  furnished  to  him,  nor  is  an 
express  promise  necessary.  4  Wend.  403;  2  Penn'a.  333;  16 
Mass.  28.1 

If  a  parent  contract  for  the  services  of  his  child,  during  his 
minority,  in  consideration  of  a  remuneration  to  be  bestowed  on 
the  latter,  the  contract  is  valid,  and  will  enure  to  the  benefit  of 
the  child,  who  may  maintain  an  action  for  it  in  his  own  name. 
2  Bailey's  R.  497.  Where  an  infant  works  for  himself  apart  from 
his  father,  his  promissory  note  is  not  thereby  rendered  obligatory. 
1  Bibb.  330;  2  Penn.  866.  The  note  of  an  infant,  as  such,  has 
no  obligatory  effect — 1  Bibb.  519 — even  though  given  for  neces- 
saries— 10  John.  33J — and  though  he  fraudulently  represent  him- 
self to  be  of  age.    1  John.  Cas.  127;  1  Root,  273. 

Where  an  infant  executed  a  release  of  her  right  in  land,  in 
collusion  with  her  guardian,  having  first  chosen  the  guardian  for 
such  purpose,  and  persuaded  the  releasee  to  pay  her  money — 
Held:  this  was  not  such  a  fraud  as  would  bind  the  infant  by  her 
release.     12  S.  &  R.  399. 


offered  at  the  same  time  to  take  her  into  his  custody  and  provide  for"  her  himself. 
In  an  action  against  him  for  necessaries  subsequently  furnished  by  the  mother's 
second  husband — Held:  he  was  not  liable;  for  if  he  was  not  lawful  guardian, 
one  could  be  appointed  who  could  take  the  estate  out  of  his  hands; — if  he  was 
lawful  guardian,  he  could  not  be  subjected,  in  an  action  at  law,  as  for  his  proper 
debt.    2  Conn.  386, 

•The  mother  of  an  infant,  whoso  father  is  dead,  is  not  bound  to  support  such 
child,  if  its  own  estate  be  sufficient.  4  Mass.  917;  2  ib.  15 — Otherwise  in  case  of 
a  father.    4  Mass.  97. 

tA  horse  is  not  necessary  to  an  infant,  and  he  is  not  therefore  liable  on  a  note 
given  for  a  horse.  2  N.  &  M.  524.  But  the  sale  is  a  valid  transfer  of  the  title  to 
him.     1  Bailey,  320. 

JSee  2  Hill's  (S.  C.)  R.  400,  contra.  And  if  the  surety  to  an  infant's  note  given 
for  necessaries,  pay  it,  he  may  recover  the  amount  from  the  infant.    Ibid. 


494  GUARDIAN  AND  WARD.  [CH.  LXIII. 

But  if  an  infant  sell  goods  and  receive  the  money  for  them,  he 
shall  not  be  permitted  to  recover  back  the  goods,  without  refund- 
ing the  money.     15  Mass.  359,  363.* 

No  laches  or  neglect  is  imputable  to  an  infant.  1  Bay.  64. — 
An  infant  is  liable  for  torts — 3  M'Cord,  257 — for  trespass  and  as- 
sault— 3  Wend.  391 — and  in  trover,  though  the  goods  were  de- 
livered to  him  on  his  own  contract,  and  not  converted  to  his  own 
use.    6  Cranch.  226. 

Whenever  a  statute  has  authorised  a  contract  for  the  public 
service,  which  is  to  be  performed  by  minors,  such  contract  will 
be  deemed  for  their  interest :  as,  an  act  enlisting  minors  in  the 
navy,  or  army.  1  Mason's  C.  C.  R.  78;  Brayt.  119;  11 S.  &  R.  93; 
10  John.  453. 

An  infant's  contracts  which  may  be  beneficial  to  him,  are  only 
voidable,  and  not  void.  13  Mass.  237;  14  ib.  457.  And  there 
is  no  difference  in  this  respect  between  an  executed  and  an  exe- 
cutory contract.  5  Sm.  &  M.  215.  See  10  Peters,  59;  8  ib.  128; 
4  Verm,  149. 

But  though  the  executory  contracts  of  an  infant  are  voidable, 
he  cannot  avoid  such  contract,  when  partially  executed,  and  re- 
cover compensation  for  work  performed  under  it,  as  if  no  special 
agreement  had  existed.     8  Cowen,  84. 

An  infant  may  avoid  a  claim  on  him,  as  endorser  of  a  note,  for 
default  of  payment  by  the  promisor.  15  Mass.  272.  Whether  to 
the  prejudice  of  a  bona  fide  holder,  see  13  Mass.  204;  15  ib.  272. 

An  assignment,  by  an  infant,  of  a  promissory  note  not  negotia- 
ble, may  be  avoided  by  him,  by  giving  notice  to  the  assignor  that 
he  considers  the  bargain  void,  and  offering  to  return  the  consid- 
eration received.     13  Mass.  204. 

An  infant's  contract,  as  surety  on  the  promissory  note  of  anoth- 
er, being  against  his  interest,  is  void.    4  Connt.  376. 


*An  infant  may  for  valuable  consideration  endorse  a  bill  of  exchange  or  prom- 
issory note,  80  as  to  transfer  the  property  to  an  indorsee.  15  Mass.  272 — see  13 
Mass.  204.  If  permitted  to  ride  his  father's  horse,  he  may  bind  him  by  a  contract 
necessary  for  the  existence  or  preservation  of  the  horse.  I  Overt.  19.  To  inca- 
pacitate an  infant  because  under  the  care  of  a  parent  or  guardian,  he  must  be 
under  actual  and  legal  government,  as  to  the  subject  matter  of  the  contract.  6 
Connt.  494. 


CH.  LXIII.]  GUARDIAN  AND  WARD.  495 

An  infant  may  avoid  any  contract  to  sell  or  release  their  rights, 
for  which  they  are  entitled  to  an  equivalent.    6  Mass.  78. 

Sales  made  by  adults  to  infants,  having  the  semblance  of  ben- 
efit to  the  vendee,  are  voidable  by  the  infant,  but  not  by  the  ven- 
dor.   13  Mass.  237. 

An  infant  who  has  disposed  of  his  personal  property,  and  done 
no  act  after  coming  of  age  to  confirm  the  sale,  and  has  pursued 
his  remedy  in  good  time,  is  entitled  to  receive  it  back.  5  Sm.  & 
M.  215.  And  this,  as  against  a  sub-vendee,  though  for  valuable 
consideration,  with  notice.  lb.  The  doctrine  of  notice  is  appli- 
cable to  purchasers  of  real  estate  only.    Ih. 

A  second  deed  by  an  infant  does  not  avoid  the  first — 6  John. 
257 — otherwise,  if  he  made  the  second  after  coming  of  age.  2 
Dev.  &  Batt.  320;  11  John.  539;  14  ib.  124. 

A  conveyance  of  land  by  an  infant  is  voidable,  or  void,  at  his 
election.    4  N.  Hamp.  441 . 

If  for  a  valuable  consideration,  it  is  only  voidable.  13  Mass. 
371;  15  ib.  220.*  -  >.=> 

If  an  infant  mortgage  land  during  his  infancy,  and  after  com- 
ing of  age,  convey  the  land,  subject  to  said  mortgage,  the  mort- 
gage is  thereby  confirmed.  15  Mass.  220.  Or,  if  he  buy  land 
subject  to  a  mortgage  while  an  infant,  and  after  coming  of  age  re- 
tains the  land — held,  this  is  a  confurmation  of  the  mortgage.  6 
Greenl.  89.  Both  the  deed  and  mortgage,  or  neither  will  take 
effect.    lUd.    IN.  Hamp.  73. 

So,  if  an  infant  agree  to  have  a  judgment  rendered  in  his  favor, 
with  a  condition,  he  cannot  have  the  benefit  of  the  judgment 
by  affirming  it  after  he  comes  of  age,  without  the  condition  also. 
1  Dana,  46. 

Contracts  respecting  the  lands  of  infants,  entered  into  between 
the  mother  as  guardian  of  the  infants  and  a  third  party,  though 
absolutely  void  at  law,  will  yet  be  sustained  in  equity,  to  the  ex- 
tent, and  to  that  extent  only,  of  the  equity  they  give  for  a  liberal 
remuneration  for  services  performed.    2  Brock.  C.  C.  R.  43. 

A  mere  recognition,  by  an  infant,  after  coming  of  age,  of  the 

*A  manumission  of  a  slave  by  an  infant,  though  done  with  the  approbation  of 
the  guardian,  is  voidable.     10  John.  132.    See  anU.  page  491-2. 


496  GUARDIAN  AND  WARD.  [CH.  LXIII. 

fact,  that  a  conveyance  has  been  made,  does  not  confirm  it,  ptr  se. 
10  Peters,  59;  8  ib.  128;  9  Mass.  62,  64;  10  ib.  138, 140;"  14  ib, 
487,  460;  1  Pick.  202.  221,  223;  4  ib.  48.* 

But  however  solemn  the  instrument,  it  is  held  to  be  void,  if 
prejudicial  to  the  infant,  on  its  face.  Ibid.  If  only  voidable,  it 
remains  good,  till  avoided.    3  A.  K,  Marsh.  7. 

An  infant  may  avoid  his  act,  by  different  means,  according  to 
the  circumstances  of  each  case.  Ibid,  A  slight  circumstance, 
after  arriving  at  age,  will  make  such  contract  binding.  4  M'Cord, 
241.  See  Connt.  R.  468;  1  Bailey,  28;  2  ib.  114;  1  Pick.  202; 
14  Mass.  457;  3  N.  Hamp.  314;  8  Greenl.  405;  1  Hayw.  143. 

The  retention  of  the  consideration  for  which  a  note  was  given, 
after  his  coming  of  age,  is  not  a  ratification  of  the  note.  9  Conn. 
330.  Nor  is  a  submission  to  arbitrators  respecting  his  liability. 
Ibid.  But  where  an  infant  took  the  note  of  a  third  person  in  pay- 
ment for  work  done,  and  retained  it  for  eight  months  after  coming 
of  age,  and,  the  maker  of  the  note  having  become  insolvent,  de- 
manded payment  of  his  work — Held:  in  an  action  for  work  by  him 
performed,  the  retention  of  the  note  was  a  ratification  of  the  con- 
tract during  infancy,  and  he  could  not  recover.     11  Wend.  85. 

Generally,  an  infant's  having  received  an  order  in  payment, 
does  not  prevent  him  from  avoiding  the  contract  on  coming  of 
age,  and  recovering  on  a  quantum  meruit.  4  Verm.  149.  The 
privilege  of  avoiding  his  own  acts,  is  personal  to  the  infant,  and 
no  one  else  can  exercise  it.    1  Mason's  C.  R.  78.  > 

§  40.  The  cases  in  which,  in  Mississippi,  a  ward's  or  infant's 
lands  may  be  sold  by  a  guardian,  under  an  order  of  the  court  of 
probates,  are —  ' ;' 

1st.  Where  the  court  allows  the  guardian  to  exceed  the  income 
of  the  estate,  and  the  personal  estate,  and  the  rents  and  profits  of 
the  real  estate  are  not  sufficient  for  the  maintenance  and  educa- 
tion of  the  ward.    Sec.  9,  p.  469— sec.  10,  p.  470. 


*It  must  be  an  express  promise  to  pay,  or  express  agreement  to  ratify — Ibid. 
— and  made  with  the  knowledge  that  the  party  is  not  liable  at  law — 9  Mass.  62, 64 
— and  voluntary,  not  under  fear  of  arrest — 1  Pick.  202 — and  before  the  commence- 
ment of  the  action.  Ibid.  It  will  then  bo  valid  from  its  date.  14  Mass.  457, 464. 
He  must  also  have  arrived  at  fall  age.  I2Conn.550;  11S.&R.305;  6N.Hamp. 
432.    It  must  be  to  the  party  in  interest,  or  his  agent.    3  Wend.  479. 


CH.  LXIII.]  GUARDIAN  AND  WARD.  497 

2d.  For  the  payment  of  the  debts  of  a  lunatic,  contracted  when 
he  was  of  sound  mind,  where  the  personal  estate  is  insufficient. 
Sec.  15,  p.  472. 

3d.  When  the  guardian  suggests  that  it  will  be  for  the  interest 
of  the  heirs,  to  sell  their  land.    Sec.  23,  p.  476. 

4th.  When  the  court  shall  be  of  opinion  that  the  interest  of  the 
minors  will  be  promoted  by  a  sale  of  the  lands  in  preference  of 
the  slaves  and  other  personal  property.    Sec.  25,  p.  479. 

5th.  Where  any  of  the  foregoing  reasons  justify  the  sale  of 
lands  belonging  to  idiots,  lunatics,  and  persons  non  compos  mtrUis. 
Sec.  26,  p.  479. 

As  the  rules  regulating  sales  of  land  by  executors  and  admin- 
istrators, are  for  the  most  part  applicable,  the  reader  is  here  re- 
ferred to  that  portion  df  this  work  which  treats  of  the  former — p. 
285-302.* 

Before  granting  authority  to  a  guardian  to  sell  the  lands  of  a 
minor,  the  court  ordered  notice  to  the  presumptive  heirs  of  the 
ward.  3  Mass.  398.  But  notice  is  not  required  by  law  to  be  giv- 
en, upon  applications  for  the  sale  of  minors'  estates.  Ihid,  326. 
See  ante.  sec.  9,  p.  469;  sec.  10,  p.  470,  and  sec.  15,  p.  472. 

A  license  for  the  sale  of  a  minor's  real  estate  must  be  granted 
in  the  alternative  for  public  or  private  sale.  5  Greenl.  240;  ante. 
sec.  10,  p.  470. 

The  decree  of  an  orphans'  court,  ordering  the  sale  of  an  intes- 
tate's real  estate,  is  not  void  as  against  a  minor,  because  he  did 
not  appear  by  guardian.  Notice  to  the  minor  is  sufficient.  But 
if  such  decree  is  erroneous,  the  minor  is  not  concluded  by  his  own 
or  his  guardian's  acceptance,  if  he  renounces  soon  after  coming 
of  age.    5Binn.  1. 

Where  upon  the  petition  of  the  guardian  of  the  minor  for  li- 
cense to  sell  real  estate  of  the  ward,  such  license  is  granted,  and 
a  person  appointed  to  make  the  sale,  the  agent  is  bound  to  an- 
swer upon  oath,  in  the  probate  court,  interrogatories  relative  to 
his  proceedings  under  the  license.     11  Pick.  113.    Where  such 


*Upon  the  petition  of  the  guardian  of  a  minor  for  license  to  sell  enough  of  hi« 
ward's  land  to  pay  his  debts,  the  certificate  of  the  judge  of  the  probate  court  is  not 
necessary,  and  is  required  only  where  the  application  is  made  for  authority  to  sell 
a  greater  quantity,     i  Mass.  397. 

63 


498  GUARDIAN  AND  WARD.  [CH.  LXIII. 

agent  sold  the  land  and  took  mortgages  for  the  purchase  money 
in  the  name  of  the  minor,  and,  after  the  minor  came  of  age,  re- 
ceived from  her  a  power  of  attorney,  to  discharge  the  mortgage, 
it  was  held,  that  he  was  not  thereby  discharged  of  his  obligation 
to  render  an  account,  and  answer  such  interrogatories  in  the  pro- 
bate court.    Ibid. 

SALE  OF  PROPERTY. 

Under  the  act  authorising  the  sale  of  a  ward's  property  for  pay- 
ment of  his  debts,  the  court  must  first  ascertain  that  there  are 
debts  due  by  the  ward,  which  render  the  sale  of  the  property  ex- 
pedient; and  must  select  the  part  or  parts  of  his  property  which 
can  be  disposed  of  with  least  injury  to  the  ward.    1  Iredell's  R.  259. 

Therefore  an  order,  to  sell  as  much  of  the  ward's  land  as  will 
satisfy  his  debts,  is  unauthorised  and  void*,  and  a  purchaser  at  a 
sale,  under  such  order,  acquires  no  title.     Ibid.  ■* 

The  statutory  guardian,  who  has  received  the  money  for  real 
estate  sold,  is  responsible  to  the  ward  of  his  intestate  or  his  as- 
signee, on  his  bond.    3  B.  Monroe,  293.*    Ante.  p.  240. 

If  the  tenor  of  the  guardian's  bond  is  such  as  to  hold  him  re- 
sponsible for  the  proceeds  of  the  real  estate  of  his  wards,  which 
he  was  authorised  to  sell,  the  manner  of  the  sale  is  immaterial ; — 
if  it  be  even  verbal,  and  he  receives  the  money,  and  the  wards  are 
willing  to  confirm  the  sale,  he  and  his  sureties  will  be  answera- 
ble on  their  bond.  1  Dana,  367.  In  such  case,  it  is  the  duty  of 
the  court  (having  jurisdiction)  to  order  the  guardian  to  pay  pro- 
ceeds and  interest  by  a  given  day,  and  on  failure  thereof  to  render 
a  joint  decree  against  him  or  them  and  his  sureties  in  the  bond, 
for  the  amount.     1  Dana,  382.t  '* 


•The  sureties  of  a  general  guardian  are  not  bound  for  funds  paid  to  him  which 
have  been  created  by  sales  of  real  estate,  under  an  order  of  court,  for  the  purpose 
of  partition  among  minor  heirs.  A  special  bond  should  be  required  embracing 
the  specific  fund.     3  Humph.  592. 

Where  guardian  and  wards  resided  in  another  state,  and  land  lying  in  Tennes- 
see was  sold  for  the  purpose  of  division,  the  court  would  order  the  proceeds  to  be 
paid  to  such  guardian,  on  his  giving  a  special  bond  to  account  therefor  to  the  dis- 
tributees.   Ibid. 

tif  the  guardian  buys  the  ward's  land  of  him,  or  sells  it  to  another,  the  ward's 
only  security,  (in  addition  to  the  personal  responsibility  of  the  guardian  when  he 
has  received  the  price,)  is  in  his  right  to  disaffirm  the  contract  after  he  comes  of 
age,  and  hold  the  land.  4  Dana,  631.  Query — Could  the  sureties  be  held  liable 
for  the  rents  and  profits?     Ibid.  '   ' 


CH.  LXIII.J  GUARDIAN  AND  WARD.  499 

In  a  deed  by  a  guardian  of  his  ward's  land  under  an  order  of 
court,  the  reason  for  granting  the  license  and  making  the  sale, 
need  not  be  stated.     10  Pick.  376. 

A  guardian  sold  his  ward's  property  at  auction,  being  himself 
the  auctioneer  and  employing  an  agent  to  bid  on  his  account; 
and  the  question  arising,  whether  the  agent  or  another  person 
made  the  last  bid,  the  other  person  bidding  higher,  the  guardian 
decided  in  favor  of  the  agent.  The  purchaser  was  to  take  the  land 
by  estimation  or  measurement,  as  he  should  elect  at  the  time  of 
the  sale — but  he  made  no  election.  He  afterwards  sold  the  land 
at  an  advanced  price.  The  quantity,  on  admeasurement,  turned 
out  to  be  less  than  the  estimate.  Hdd:  the  guardiaii  must  ac- 
count at  the  advance  for  which  he  sold ;  that  he  was  bound  by 
the  estimation;  and  that  even  if  there  was  another  sale,  the 
guardian  shall  not  charge  himself,  with  the  amount  of  that  sale 
as  the  value  of  the  land,  for  the  trustee  shall  not  buy  so  as  to  make 
profit  to  himself.     13  Pick.  272. 

Lands  of  minors  sold  remain  bound  for  the  purchase  money. 
How.  &H.  417. 

Waste. 

A  guardian  is  not  liable  who  takes  a  bond  without  security, 
provided  he  acts  with  common  skill,  common  prudence,  and 
common  caution.     1  Penn.  R.  207. 

If  a  guardian  consent  to  the  misapplication  of  the  ward's  mon- 
ey by  his  co-guardian,  he  is  liable.     11  S.  &  R.  66. 

Where  a  guardian  under  a  will  was  not  entitled  to  receive 
principal  or  interest  of  his  ward's  money,  he  is  not  liable  on  ac- 
count of  the  insolvency  of  the  executor.     12  S.  &  R.  317. 

A  guardian  who  invested  funds  of  his  wards  in  bank  stock,  in 
good  faith  for  their  benefit,  and  received  the  dividend  in  depre- 
ciated paper,  was  held  accountable  for  their  money  with  interest 
to  his  loss.  Under  the  circumstances,  the  interest  shall  not  be 
compounded.    2  Dana,  252. 

Land  of  a  decedent  was  sold  by  order  of  court,  the  proceeds  to 
be  applied  to  the  payment  of  a  debt,  and  distribution  among  the 
widow  and  heirs.  The  sale  was  on  credit  for  'par  money,  but  a 
depreciated  currency  was  received  by  the  defendant,  who  was 
administrator  and  guardian.    Though  the  currency  was  received 


500  GUARDIAN  AND  WARD.  [CH.  LXIIL 

by  him  in  good  faith,  as  he  had  no  authority  to  receive  it,  he  is 
accountable  for  the  full  amount  as  so  much  money.  But  some  of 
the  heirs  having  received  the  samt  of  him  after  they  came  of  age, 
voluntarily,  are  presumed  to  have  received  it  understandingly, 
and  having  acquiesced  in  that  settlement  for  several  years,  it  shall 
not  be  disturbed.  Their  former  guardian  is  entitled  to  credit  for 
sums  paid  them,  without  reduction  for  the  depreciation.  Those 
who  have  not  received  their  shares,  are  entitled  to  the  full  amount 
in  lawful  money,  which  their  guardian  might  have  coerced.  6 
Dana,  204. 

Proof  that  slaves  hired  out  by  a  guardian  were  worth  more,  in 
the  opinion  of  the  witnesses,  than  the  prices  at  which  they  were 
hired  by  the  guardian,  does  not  prove  that  the  guardian  acted  im- 
properly, or  that  there  was  either /mw^?  or  mistake  in  a  settlement 
made  with  him  by  the  court.    4  B.  Monroe,  335. 

Where  a  guardian  neglected  for  nine  years  to  collect  the  hire 
of  a  slave  owned  by  his  ward,  and  no  suit  was  brought  by  his 
ward  after  he  arrived  at  full  age,  until  the  claim  was  barred  by 
act  of  limitation — hdd :  the  guardian  was  liable  for  the  amount, 
notwithstanding  it  might  have  been  collected  by  the  ward,  had 
he  brought  suit  within  the  period  of  limitation.  9  Yerger's  R. 
418. 

HABEAS    CORPUS. 

§  41.  The  father,  upon  principles  of  common  law,  is  entitled 
to  the  exclusive  custody  of  his  children ; — and  if  he  have  the 
custody  of  them,  a  court  of  common  law  will  not  deprive  him  of 
it,  except  for  an  abuse  of  trust,  either  by  improper  violence  or  im- 
proper restraint,  and  such  as  would  justify  the  issuance  of  a  writ 
of  habeas  corpus  for  their  protection.    4  Humph.  R.  523. 

A  court  of  common  law  is  not  bound  in  a  proceeding  by  habeas 
corpus  to  deliver  the  child  to  the  father,  where  he  has  not  the 
possession  of  it,  but  may  act  according  to  the  circumstances  of 
the  case.  The  great  leading  object  should  be  the  interest  and 
welfare  of  the  child ;  and  therefore,  where  the  child  is  of  suflS.- 
cient  age  to  judge  for  itself,  the  court  should  leave  it  to  go  where 
it  pleases.     Ibid. 

The  wife  has  no  right  by  common  law  to  the  custody  of  the 
children  as  against  the  husband,  and  she  cannot  be  looked  to  by 


OH.  LXIII.]  GUARDIAN  AND  WARD.  50t 

the  court,  except  so  far  as  she  may  be  considered  in  reference  to 
the  tender  age  of  the  children,  and  other  considerations,  as  the 
most  suitable  person  to  have  control  of  them  for  their  benefit, 

im. 

A  writ  of  habeas  corpus  may  properly  be  issued  by  the  husband 
against  a  wife,  to  obtain  the  custody  of  their  child.  16  Pick.  203, 
Where  in  the  case  of  an  unauthorised  separation  of  a  wife  and 
child  from  her  husband,  without  any  apparent  justifiable  cause, 
it  was  not  clearly  proved  that  the  husband  was  unfit  to  have  the 
custody  of  the  child,  the  court  ordered  it  to  be  restored  to  him. 
lUd. 

A  habeas  corpus  will  not  be  granted,  on  application  of  a  fa- 
ther, to  take  a  child  of  three  years  old  from  the  mother,  where  the 
mother  lives  with  the  father,  and  the  child  is  well  taken  care  of, 
and  not  likely  to  be  so  by  the  father.    2  Root,  461. 

On  habeas  corpus  for  a  child,  a  court  would  not  decide  be- 
tween the  claims  of  the  mother  and  the  guardian,  and  permitted 
the  child  to  go  with  whom  he  chose,  without  molestation  from  ei- 
ther.    10  Pick.  274;  6  Mass.  273. 

Habeas  corpus  will  not  lie  to  enable  a  guardian  appointed  ac- 
cording to  law  to  obtain  the  custody  of  his  minor  ward,  who  re- 
mains voluntarily  with  his  mother.    2  South.  445. 

§  42.  Upon  a  habeas  corpus,  to  restore  an  infant  to  the  custody 
of  the  parent,  the  court  will  look  into  all  the  facts  stated  in  the  re- 
turn ;  and  will  not  discharge  the  defendant,  simply  because  he 
declares  the  infant  not  to  be  in  his  possession,  power  or  custody, 
if  the  conscience  of  the  court  is  not  satisfied  that  all  the  material 
facts  are  disclosed.    3  Mason's  C.  C.  R.  482. 

And,  on  a  writ  of  habeas  corpus  by  a  guardian  to  regain  pos- 
session of  his  ward,  who  has  been  forcibly  taken  from  him  by  the 
parent,  the  court  cannot  entertain  jurisdiction,  unless  the  ward  is 
restrained  of  his  liberty.  6  How.  406.  For,  where  it  appeared, 
that  the  ward  was  forcibly  taken  from  the  possession  of  the  testa- 
mentary guardian  by  the  mother,  and  it  appeared  the  ward's  in- 
terest and  inclinations  would  be  consulted  by  remaining  with  the 
mother,  the  court,  on  a  writ  of  habeas  corpus,  refused  to  restore 
the  ward,  although  it  did  not  appear  that  the  guardian  had,  in 
any  way,  abused  his  trust,  or  was  incompetent  to  discharge  it.   lb. 


502  GUARDIAN  AND  WARD.  [oH.  LXIII. 

ACCOUNT. 

Guardians  must  settle  their  accounts  annually,  adding  each  year 
the  interest  on  the  funds  in  their  hands  to  the  principal.  But  the 
act  does  not  apply  to  testamentary  guardians,  as  they  are  not  with- 
in the  jurisdiction  of  the  courts.  They  are  accountable  in  courts 
of  equity  as  other  trustees  are,  and  in  like  manner  liable  for  what 
interest  they  make  on  the  funds  entrusted  to  them,  or  which  they 
be  presumed  to  have  made  by  faithful  and  prudent  management. 

5  Dana,  594.* 

As  to  proceeds  of  land  sold  in  another  state,  see  3  Dana's  R.223. 
The  account  should  be  with  each  distributee  separately.  Ibid. 
See  8  S.  &  R.  12.  He  is  chargeable  with  interest  if  he  fails  to 
invest  the  funds  of  his  ward.     Ibid. — and  4  S.  &  R.  112. 

But  if  a  guardian  cannot  let  the  money  or  collect  the  interest, 
he  will  be  excused  and  held  accountable  for  interest,  so  far  only 
as  he  received  it.  If  he  uses  the  money  himself,  he  will  be  held 
accountable  for  compound  interest.  2  Dana's  R.  251.  Whatever 
a  guardian  has  received  belonging  to  his  ward,  he  must  account 
for.     1  Humph.  R.  210;  6  Rawle,  323. 

A  guardian  is  not  chargeable  with  interest  for  money  in  his 
hands,  unless  he  has  consented  to  take  the  money  at  interest,  or 
unless  it  has  been  loaned  out  at  interest  under  the  direction  of 
the  court.    5  How.  422. 

A  guardian,  on  the  arrival  of  his  ward  at  full  age,  must  ex- 
hibit a  final  account,  and  deliver  up  all  the  property  of  his  ward ; 
and  from  that  time  money  in  his  hands  will  bear  interest.     3  Gill. 

6  John.  103.    If  guardian  dies,  infant  may  compel  a  settlement, 
as  if  of  age.    21  Black.  141. 

A  guardian  should  be  allowed  for  clothing  for  the  ward,  (there 
being  no  suggestion  that  they  were  not  clothed,)  though  there  is 
no  regular  account  of  it ;  and  for  their  board  also,  when  it  appears 
that  they  were  kept  at  school,  though  they  were  old  enough  to 
earn  their  bread.    5  Dana,  395. 


*Re8t8  should  be  regulated  by  the  circumstances  of  each  case.  In  this,  where 
the  testamentary  guardian  cannot  be  presumed  to  have  made  compound  interest , 
but  did  probably  collect  interest  occasionally,  a  rest  at  the  end  of  each  three 
years,  to  add  the  interest  then  in  his  hands  to  the  principal,  is  deemed  proper. 
Ibid. 


CH.  LXIII.]  GUARDIAN  AND  WARD.  603 

Where  testamentary  guardian  was  the  grand-father  of  the  wards, 
and  had  made  no  charges  against  them  for  his  personal  services, 
nothing  should  be  allowed  in  a  decree  against  his  executors  on 
that  score.  The  actual  expense  and  compensation  for  board  and 
clothing  only  should  be  allowed.    Ibid. 

A  guardian  having  paid  money  on  account  of  his  ward,  must 
include  it  in  his  account,  before  the  court  of  probate.  7  Pick.  47. 
He  cannot  sue  the  ward.  lb.  He  will  be  entitled  to  interest  on 
such  advances.     13  Pick.  272. 

Transactions  between  a  guardian  and  his  ward,  during  the  mi- 
nority of  the  latter,  are  alone  the  subjects  of  settlement  in  a  guar- 
dianship account.    2  Watts,  295. 

Where  a  guardian  has  removed  and  neglected  to  settle  his  ac- 
count in  the  probate  court,  it  was  held,  that  the  administrator  of 
one  of  his  sureties  might  settle  his  account.  1  Pick.  198.  The 
statute  of  Massachusetts  does  not  require  it  to  be  settled  on  the 
oath  of  the  guardian.    Ibid. 

Where  a  guardian  gave  a  negotiable  note  as  guardian,  it  was 
held,  that  he  was  liable  in  his  individual  capacity,  after  his  guar- 
dianship was  discharged,  and  might  indemnify  himself  out  of  the 
estate  of  his  ward.    5  Mass.  300;  6  ib.  58. 

Every  item  of  a  guardian's  account  should  be  supported  by  a 
voucher,  or  some  other  satisfactory  evidence  of  its  correctness. — 
If  the  evidence  is  not  reported,  the  settlement  should  be  rejected, 
and  the  accounts  again  referred.    5  Dana,  554.* 

The  son-in-law  of  a  guardian  is  not  a  suitable  person  for  a  com- 
missioner to  settle  the  guardian's  account ;  hut  the  fact  that  one 
of  the  commissioners  is  so  related  to  the  guardian  is  not,  per  se, 
sufficient  cause  for  rejecting  the  report.  Yet  it  should  induce  ex- 
traordinary vigilance  w  scrutinizing  it.    Ibid. 


*A  distributee  is  not  concluded  by  a  receipt,  exonerating  his  guardian,  given 
soon  after  the  ward  came  of  age,  and  without  a  full  knowledge  of  the  facts.  6 
Dana,  204.  Nor  by  a  receipt  given  in  order  to  obtain  papers  from  the  guardian. 
4S.  &R.  112. 


INDEX. 


ABSENTEES— non-resident  guardian,  -  -  -       22,  473 

non-resident  parties  interested  in  exr's.  &  admr's.  acc'nt.  23 

saving  as  to  non-residents,  in  probating  wills,  -  202 

next  of  kin  may  designate  administrator,  -  -        236 

while  absent,  grant  shall  be  durante  absentia,  •  236 

how,  where  in  a  hostile  country,  ...        237 

executor  residing  abroad,  how  removed,         -  -  245 

legatees'  distributees,  heirs  or  ward,  residing  abroad,  334 

notice  to,  on  sale  of  real  estate,  ...        476 

ACXIOUNT — of  executor  and  administrator,  -  -  326 

by  whom,  exec'r.  or  adm'r.  being  dead,  -  -        327 

voucher  and  evidence  of  payment,  ...  327,  328 
order  of  payment,  ....  328,  329 

what  payments  allowed,        -  -  -  -      329,  330 

what  not,  .....  331,  332 

oath  and  answers  of  administrators,  -  -  332 

final  settlement,  .....        333 

opening  and  correcting  accounts,       -  -  -  332 

proceedings  on  exception  thereto,  ...        333 

bill  of  review,  .....  334 

decree,  effect  of,  .....        334 

ACTIONS — by  and  against  executors  and  administrators,  -  366,  371 
for  legacies,         .....  196,  199 

exec'rs.  and  adm'rs.  entitled  to  same  as  deceased,  -  223,  225 
against  executors  de  son  tort,  -  -  229-30 

on  bond  of  executors  and  administrators,        -  -  343-5 

by  administrator  ad  coll.  ...  249-50 

by  administrator  with  will  annexed,  -  -  253 

by  administrator  de  bonis  non,      -  -  254-55-56-57 

by  husband  and  wife,  ....         280-81 

in  case  of  insolvency  of  estate,  -  -       313,  17,  18 

against  widow  for  waste,  -        .        -        -        -  414 

at  law,  for  legacy  or  distributive  share,         -        •        -         431 

on  guardian  bond, 468,  484-85 

64 


506 


INDEX. 


ACTIONS— continued. 

not  allowed  within  9  months  after  death  of  intestate  or  testator,  312 
nor  after  report  of  insolvency,       ...  312,  313 

ADMINISTRATOR— in  England, 215,  216 

how  and  when  appointed,  233 

who  entitled  to  -who  preferred,        -        -        -      234,  236,  237 

when  appointment  void, 234,  237 

when  voidable,       ....      234,  235,  236 
when  granted  notwithstanding  will,      ....  235 

jurisdiction  of,  what  county,  ....  235 

oath  of,  and  bond, 238 

ad  colligendum,  when  appointed — form  of,  oath  and  bond,       249 


power  of,  duration  of, 

with  the  will  annexed,  when, 

who  may  be,       -        -        - 

power  and  duty  of, 

to  account,  when, 

de  bonis  non,  when, 

who  entitled  to, 

when  void — when  valid, 

by  what  court  granted, 

power  and  duty  of, 

action  by, 

against,, 
in  chief,  who  qualified, 


249,  250 

-  251,  253 
251,  252 

-  252,  253 
253,  257 

253,  254,  264 
253 
254 
254 

-  254,  255 
255,  257 

257 
257,  258,  259 


provisions  in  relation  to,  extended  to  ex'rs.  and  adm'rs 
inventory  by — (See  Inventory)  ... 

where  no  executor  or  administrator  will  qualify, 
actions  by  and  against,         .         -        •         .        - 
party  in  the  singular  means  plural, 
rules  respecting  executors  apply  to  administrators, 

ADVANCEMENT— what,  

must  pass  during  parent's  life,     .... 
depends  on  the  intention  of  the  parent, 

pro  tanto, 

may  be  contingent, 

benefits  not  advancements,  .... 

only  in  case  of  intestacy,         .... 
widow  derives  no  benefit  from,      .... 
English  rule  as  to  gifts  by  mother, 

rule  in  Mississippi, 

to  be  valued  as  at  the  time  of  gift, 

jurisdiction  of,  orphans'  court, 

petition  for  distribution,        ... 


258 
259 

365,  366 

366,  371 
258 
258 
427 
427 
427 
428 
428 
428 
429 
429 
429 
429 
429 
429 

429,  430 


INDEX. 


507 


ADVERTISEMENT.    (See  Notice  and  Publication.) 

AD  COLLIGENDUM— letters,  when  granted,            -           -  249 

form  of,  and  oath  and  bond,        ....  249 

collector  may  collect  goods,                -            -       '     -  249 

may  sell  perishable  property,  how,          ...  249 

commission  of,           -           -           -         '  -           -  249 

may  sue  for  debts  and  release  same,        ...  249 

power  to  cease,  when,           ....  249 

must  deliver  property  to  administrator,                 -            -  249 

on  failure,  may  be  attached  and  fined,            -            •  250 

cannot  sell  any,  except  perishable  effects,            "•           -  250 

cannot  distribute  the  estate,               ...  250 

one  collector  may  compel  another  to  inventory,     -            -  24 

ALLOTMENT— of  dower,  ....      383,  391 

of  distributive  shares,      ....  432,  433 

among  joint  tenants,  &c.       ....      435,  437 

ANSWER— to  petition, 21 

APPEAL. 

Statute  regulating  appeals,  -  -  -  27  &  41 

difference  where  pleadings  are  plenary  and  summary,  28 

how  judgment  above  to  be  rendered — note  to,      -            -  28,  29 

what  party  may  appeal,  and  wherefore,         -            -  29,  31 

when  party's  interest  to  appear,               -            -            -  31 

what  the  record  must  show,               -            -            -  31,  32 

when  appeal  to  be  entered  above,             -           -           -  32 
what  judgment  court  above  will  render,        -            -    28,  29,  40 

court  above  must  have  jurisdiction,  of  the  record,            -  40 

if  not,  no  judgment  for  costs  can  be  given,      -           -  40 

when  costs  allowed,        -           -           .-           -  40,  41 

APPLICATION— for  letters  testamentary,  &c.           -           -  20 

APPRAISEMENT— on  granting  letters  testamentary,      -           -  259 

three  or  more  appraisers  appointed,                -            -  259 
appraisers  must  not  be  related  to  the  deceased,  nor  interested,    259 

on  death,  refusal  or  neglect  of  one,  another  warrant,  259 

oath  of  appraisers,           .....  259 

proceedings  of  appraisers,      ....  260 

how  certified  and  sworn  to,          -            -            -            -  260 

further  time,  when  granted,               -            -            -  260 

executor  to  return  appraisement,             ...  260 

on  failure,  how  compelled,                -           -           •  ^60 

notice  by  appraisers  to  persons  interested,           -           -  260 

how  far  evidence,      .....  261 

second  appraisement,       .....  261 
{See  Inventoet.) 


50&  INDEX. 

ASSETS — title  to  vest  in  executor  or  administrator,  -  -        365 

relates  lo  death  of  decedent,  ...  265 

extends  only  to  property  in  the  state,       ...        265 
lands  go  to  the  heir  and  not  assets,  -  -  265 

lands  only  equitable  assets,  when  ...        266 

rents  accruing  before  death  of  intestate,  are  assets,  266 

buildings  not  assets,        .....        266 
a  still  is,  and  mortgage  on  land,  and  annual  fruits,  266,  267 

of  emblements,  who  entitled  to,  ...        267 

growing  crops,  yhen  assets,  ...   267-68-69 

damages  assessed  in  intestate's  life-time,  are  assets,  269 

money  under  treaty,  and  damages  for  breach  of  covenant 

committed  in  life  time  of  intestate,  -  -        269 

land  script  is  assets,  ....  269 

hire  and  increase  of  slaves  are  assets,      ...        270 
equitable  interests  are,  ....  270 

debts  to  decedent,  when  ....        270 

money  recovered  and  received  by  administrator,        -  270 

remainder  and  reversion  are  assets,         ...        270 
proceeds  of  lands  in  other  states,  not  assets  here,      -  271 

bonds  to  adm'r.  when — debtof  adm'r.  when,        -  271-273 

when  adm'r.  bound  ^o  litigate  for,      ...  273 

of  fraudulent  conveyance  of,        ...         273-74-75 
choses  of  wife,  when  assets,  ...       275-280 

what  are  not  assets,         ....  280-283 

order  of  disposition  of  assets,  ...  284 

how  marshalled,  ....  336,  340 

ATTACHMENT — to  compel  commissioners  of  insolvency  to  report,      313 
to  compel  performance  of  decree,  ...      24-5 

to  compel  an  inventory,  ....  260 

AUDITORS — on  final  settlement  of  executor's  accounts,     -  -        88S 

AUTHENTICATION— (See  Evidence.) 

BASTARDS— when  they  may  inherit— note  to,      -  -  -        423 

guardianship  of,         -  -  -  -  -  473 

BEQUESTS— (See  Wills,  and  Devises,  and  Legacy.) 

BILL,  of  review — (See  Account.) 

BOND — of  executors  and  administrators,  ...        238 

how  payable,  .....      238,  242 

eflfect  of, 238,  239 

by  joint  administrators,         ....  239 

obligation  of,       -  -  -  -  -  240,  241 

breach  of,  what  constitutes,  ...      241,  242 

action  on,  -  -  -  -  -  242,  245 

conditions  how  far  good,        .     ,      -  .  .  244 


INDEX.  509 

BOND — contirmed — when  void,  ....        244 

party  first  entitled  to  satisfaction,      ...      244,  245 
of  guardians,       ...  466,  468,  473,  474,  476 

on  sale  of  lands,        .....  477 

of  clerk  of  probates,         .....        457 

CITATION — to  heirs,  distributees  and  heirs,  on  adm'rs.  account,  333 

how  served,         ......        334 

on  sale  of  lands,        .....      286,  295 

{See  Summons.) 
on  decree  of  court,  -----  25 

on  appeal — note  to,  ....  29 

to  orphan,  ......        467 

on  petition  to  remove  wards'  property,  -  -  475 

CLAIMS— when  to  be  presented,  -  -  -  309,  358 

within  two  years,  ....  358-9 

notice  for,  required  .....        310 

what  sufficient,  .....  310 

when  limitation  commences,        ....        310 
legal  publication,  what  ....  310 

CLERK  OF  POLICE— who, 458 

his  duties,  .....      453,  465 

CLERK  OF  PROBATE— when  appointed  pro  tern.  -  -        442 

allowance  for  furnishing  clerk's  office,  -  -  442 

deeds,  &c.  recorded  by,  ...  442,  443 

tramsfer  of  suits,  &.c.  to  office  of,      -  -  -  443 

may  appoint  deputies,  ....        444 

offices  where  kept,  ....  444 

disposition  of  records,  when  office  vacant,  -  -        444 

razing  records,  penalty  of  ...  445 

may  administer  oaths,  when  ...        445 

to  keep  and  preserve  records,  &c.      -  -  -  447 

duty  of,  in  Hinds  county  and  Yazoo,       -  -  447,  448 

bond  of, 457-8 

duties,  incidental,  -  -  .  .  .        457 

is  clerk  of  board  of  police,  ...  453 

duties,  as  such — (See  Clekk  of  Police.) 

COMMISSIONERS— (See  Inventory— Dower— Partition.) 

COMMISSIONS— (See  Compensation— Deposition.) 

COLLECTOR — (See  Administrator  ad  colligendum.) 

when  appointed,  and  his  duties,  ...        249 

COMPENSATION— of  executors  and  administrators,  -     353,  356 

general  rule,        .....  353,  354 

when  retained,  .....  354 

on  lost  property,  ....  354^  355 


510  INDEX. 

\ 

COMPENSATION— con^nwed— on  proceeds  of  land,  -  355 

on  legacies,  ......        355 

for  finishing  growing  crop,  ...  355 

of  two  executors,  retainer  ....    355-6 

not  allowed  to  dishonest  executor,  -  -  356 

how,  when  executor  keeps  no  account,  -  -        356 

CONTEST— of  will, 202 

proceedings  in,  .....        202 

of  claim,  by  executor,  ....  359 

CONTRIBUTION— by  life  legatee,  -  -  -  -        195 

by  co-devisee,  .....  199 

by  legatees,  .....  189,  190 

by  widow  for  redemption,      ....      377,  398 

CONVEYANCE— (See  Sales— Guardian  &  Ward— Dower.) 

by  administrator  in  pursuance  of  title  bond,  -  11 

CONTINUANCES— of  time  for  report  of  commissioners,  312,  316 

"      for  in\'entory,  ...        260 

COPARCENERS— (See  Joint-tenants,  and  Partition.) 

dower  in  lands  held  by,  ....        380 

division  between,  ....      434,  440 

COPIES — of  record  of  superior  court,  establishing  will,      -  -        207 

to  what  court  returned,  -  -  -  -  207 

authenticated  copy  of  will,  evidence,       ...        208 

and  see  note  to  page  215 

as  to  copy  of  foreign  will,      ....  81-86 

^  of  inventories  and  appraisements,  ...        261 

of  bond  of  clerk,        .....  459 

of  records  of  board  of  police,      ....        461 

COSTS— on  trial  of  issue  referred,  ...  23 

how  payment  enforced,  -  -  -  -  24 

in  supreme  court,  when  given  and  how  enforced,      -  40 

when  administrator  entitled  to,  -  -  362,  365 

when  widow  entitled  to,  on  petition  for  dower,  -  391 

COUNTY  COURT— jurisdiction  of,         -  -  -       6,  443,  444 

COUNTY  AND  PROBATE  COURT— (See  County. Court.) 

CREDITORS— when  appointed  executor,        ...  272 

cannot  sue  in  probate  court,         -  -  -  -     9,  10 

exceptions  to  this  rule,  .  -  *  .  11 

may  appeal,  when  -  -  -  -        29,  30,  31 

when  entitled  to  administer,  ...  236 

oath  in  proof  of  claims,  -  •  306,  307,  345 

examination  of,         -  -  -  -  -  314 

presentation  by,  -  -  -  309,  358,  359 

notice  to,  -  -  .  .  .  siQ 


INDEX. 


511 


CREDITORS— confinwed; 

(See  Limitation.) 

in  case  of  insolvency,  ... 

distribution  among,  .  -  .  - 

remedy  of  and  proof  by,        - 

where  debt  is  not  due, 

(See  Insolvency.) 

payment  to,         -  -  -  -  - 

DAMAGES — in  action  by  distributees, 

by  legatees,  ..... 

on  petition  for  dower,  ... 

clerk  liable  for,  .... 

DEBTS— payment  of— order  of,  -  -  - 

when  not  due,  .... 

proof  of,        ..... 

what  allowed  in  administrator's  account,, 
DECREES — when  final  and  conclusive — note  to 

"  "... 

*'  "         in  Mississippi, 

how  enforced,      ..... 

of  allowance  of  administrator's  account,  effect  of, 
DECREASE  OF  PROPERTY— see  Howard  &  Hutchinson, 

(See  Inventory.) 
DEFAULTERS— (See  Devastavit.) 
DEPOSITIONS — in  plenary  proceedings  how  taken, 

where  witness  resides  abroad, 

what  to  prove  respecting  will, 

cumulative,  when  ... 

DEPUTIES— may  be  appointed  by  clerk, 

oath — and  authority  of, 
DESCENT— what, 

as  to  what  land  it  shall  take  effect, 

seizin  necessary — actual  or  constructive, 

right  of  entry  not  sufficient, 

notoriety  of  possession  required, 

canons  of  descent — which  abolished, 
"  '*  which  retained, 

representation,  per  stirpera, 

collateral,  ... 

statute  of  in  Mississippi, 

what  descends,  ... 

to  whom  it  may  descend, 

as  between  husband  and  wife, 

partition  of  lands  descended, 


- 

312 

312 

312, 

313,  320 

313 

323,  327 

. 

431 

431 

387, 

390,  391 

462 

323,  326,  8 

313 

306,  7,  14,  345 

329,  332 

. 

2  to  3 

-  3  to  9 

- 

6  to  9 

-  24-25 

. 

334-5 

m, 

414 

23 

201 

. 

201 

201,  203 

. 

444 

444 

416 

- 

416 

417 

. 

417 

417 

. 

417-18 

418 

- 

419,  421 

421 

- 

422 

423 

- 

424-5 

433 

512  INDEX. 

DEVASTAVIT— what  constitutes,      -           ■           -           -  340,  348 

requires  fraud  or  gross  negligence,          .            .  -        340 

in  payment  of  inferior  debts,              ...  340-1 

when  administrator  discovers  new  debts,  how      -  -        342 

by  loss  of  debts,         -            .            -            .            .  342-3-4 

compromise  of  debt,          -            -            .            .  -    343-4 

by  paying  debts  for  which  estate  is  not  liable,            -  344 
how  if  barred  by  limitation,          -            -            -        345,  357-8 

by  sale  of  goods,  when,          -            .            .            .  346 

by  placing  assets  in  trade,             -            .            .  .        346 

by  making  distribution  or  paying  legacies,  when       -  346-7 
DEVISES— (See  Wills,  and  Estates.) 

void,  what                 .....  145,  15 

when  the  same  estate  would  descend  as  is  devised,  145,  146 

against  the  reason  and  policy  of  the  law,  146,  154,  158 

"                       as  for  perpetuity,               -  146,  147 

'»        for  uncertainty  of  person  or  thing,         -  147,  148 

"        by  death  of  devisee,  ...        143 

when  lapsed,  to  whom  it  will  go,       ...  143,  150 

'•            for  repugnancy,       ...  150,  151 

good  when — condition  being  void,      ...  151 

void  when — condition  being  valid,            -            -  151,  152 

dying  without  issue,               ....  152,  154 

division  of  devised  premises,        ....    132-3 

DEVISAVIT  VEL  NON— issue  referred,       -           -           -  24-25 
to  contest  will,                 .....        202 

referred  to  circuit  court,        -            -            .            _  202 

new  trial  of,         -            -            -            -            -  -        202 

certificate  of  witnesses  below,  how  far  evidence,       -  202 

judgment  on  must  be  in  probate  court,     -            -  -          25 

verdict  in  circuit  court,  how  certified,            -            -  25 

DISQUALIFICATION— of  judge  of  probate,        -           -  -        446 

of  judge,  when  attorney  at  law,         -            -            -  446 

"        when  a  relation  of  the  deceased,             -  446,  447 

"        when  executor,  administrator,  or  guardian, 

before  being  appointed  judge,             -  -        447 

"        of  executor,             ....  216,  217 

DISTRIBUTEES— petition  by,       ....  429,  430 

parties  to,  and  statement  in,               -            -            .  430 

at  the  expiration  of  twelve  months,          -            -  -        429 

rule  granted  by  court,            ....  439 

refunding  bond  when  required,  when  not,             -  -        430 

petition  must  allege  tender  of  bond,               -           -  430 

(^  order  for  distribution  immediate,  ...        430 


INDEX. 


513 


DISTRIBUTEES— continued; 

if  after  settlement,  must  so  allege, 

set-off,  or  deduction  from, 

judgment  for  damages, 
DISTRIBUTION— statute  of  in  Mississippi, 

of  surplusage,  after  payment  of  debts, 

advancement  brought  into  hotchpot, 

rule  to  be  observed  in  distribution, 

division  how  made,  -  -  .  . 

DIVIDEND — in  case  of  insolvency, 
DIVISION  OF  LANDS— (See  Joint-teicants- Paktition, 
DOCKET — of  all  cases  to  be  kept,  in  their  order, 

of  board  of  police,  .... 

DONATION  CAUSA  MORTIS— (See  Legacy.) 
DOWER— what,  -  .  -  .  . 

who  entitled  to,  -  -  -  - 

of  what,  ..... 

according  to  what  value,        ... 

as  against  the  heir,  .... 

the  alienee, 

how  assigned,  .... 

petition  for,  .... 

quarantine,  what  .... 

widows'  rights  till  assignment, 

who  must  assign,  and  how, 

writ  of  admeasurement, 

quantity  and  quality,        .... 

jurisdiction  of  dower, 

when  by  metes  and  bounds, 

how,  where  property  is  indivisable, 

assignment  must  be  absolute, 

must  be  of  the  entire  value, 

of  proceeds  of  slaves,  rents  and  profits. 

must  be  of  the  whole  inheritance, 

when  widow  entitled  to  recover  rents, 
"  ••  mesne  profits. 


against  whom  petition  may  be  filed, 
description  of  land  in  petition, 
appointment  of  commissioners, 
when  widow  entitled  to  interest, 
how  barred,  .... 

by  determination  of  the  estate  and  eviction, 
by  elopement,  divorce,  and  detaining  title  deeds, 
65 


- 

430 

- 

430 

. 

431 

-  425-6 

. 

426 

. 

426 

. 

426 

. 

433 

-  312, 

313 

.) 

- 

20 

- 

456 

372, 

373 

-   373, 

376 

876, 

380 

-   380, 

389 

380, 

381 

- 

381 

381, 

391 

-  381, 

382 

382, 

383 

. 

382 

- 

382 

. 

383 

. 

384 

- 

384 

. 

385 

-   385, 

386 

. 

386 

- 

386 

. 

887 

- 

387 

387, 

390 

. 

387 

387,  390-1 

387-9 

389,  390, 

391 

- 

390 

- 

391 

-  391, 

404 

- 

392 

- 

392 

514  INDEX. 

DOWER— continued: 

by  fine  or  common  recovery,        ....        392 
refusing  to  return  to  her  husband,  and  afterwards  living 

in  adultery,  .....        392 

by  jointure,  or  collateral  satisfaction,  >  -  393 

election  when  and  how  made,     ....  394,  8 
by  relinquishment,  ....  398,  403 

by  other  acts,  .....  402 

in  personal  estate,  ....  404,  405 

according  to  what  law,  ....      405,  412 

of  dower,  generally,        ....  412,  415 

DWELLING-HOUSE— widow  entitled  to,      -  -  -  381-2 

ELECTION  OF  JUDGE— 441 

of  clerk,        ......  441 

ELECTION— doctrine  of— (See  Dowek.) 

EMBLEMENTS— (See  Assets.) 

ESTATES  /iV  TAiL— effect  of  a  devise  of,         -           -  121,128 

in  remainder — contingent,                 -            -            .  128,  132 

by  executory  devise,        -            -.           -            -  132,  133 

in  remainder,  vested,             ....  134,  137 

on  condition,  precedent  and  subsequent,              -  137,  140 

effect  of,            -  140,  142 

"                       '•                       when  payable,  142,  144 

EXCEPTIONS— 316-17 

to  report  of  insolvency,  ....        312 

to  account  of  executor  or  administrator,        -            -  332 

EXECUTION -fieri  facias  on  decree,       -  -  -  -         24 

attachment  vs.  the  person,  ...  25 

for  costs,  ......    23-24 

(See  Process.) 
not  to  issue  on  j  udgment  obtained  after  report  of  insolvency,      313 
EXECUTORS  &  ADMINISTRATORS— 

not  liable  for  costs  on  appeal,      ....    40-41 

"        nor  for  interest,  generally,  -  -        41,  347 

may  compromise  a  claim,  -  -  -  342,  344 

allowed  credit  for  lost  debts  when,  -  -  345 

may  surrender  letters,  ....        221 

how  far  they  represent  the  deceased,  -  -      223,  224 

difference  between  before  probate,  ...        225 

where  appointed  and  qualified,  -  -  -         233,  8 

bond  of, 238,  341 

"        breach  of  bond  by,  ...  241-2 

^'        action  on,  against,  -  -  -  242-3-4 


INDEX.  515 

EXECUTORS  &  ADMINISTRATORS— conanued; 


revocation  of  their  letters, 

- 

- 

245 

"        of  adm'r.  residing  out  of  state, 

- 

245 

on  petition  of  sureties, 

- 

- 

246 

for  failing  to  exhibit  inventory, 

- 

246 

(See  Revocation.) 

actions  by, 

- 

366 

EXECUTOR— who  may  be, 

- 

- 

216,  217 

how  appointed  and  qualified. 

- 

217, 

218,  231 

where  two  are  named, 

- 

- 

218 

his  refusal,  how 

- 

218,  219 

when  presumed, 

- 

- 

219 

cannot  refuse  after  administering, 

219, 

220, 

232,  233 

nor  after  taking  oath, 

- 

- 

220 

if  he  refuses  and  adm'r.  is  appointed,  he  cannot  after- 

wards accept, 

- 

- 

220 

otherwise  after  adm'rs.  death. 

- 

220 

where  one  of  several  renounces. 

- 

- 

220,  221 

cannot  assign, 

- 

221 

may  surrender,  how 

- 

- 

221,  222 

his  interest  in  testator's  goods, 

- 

222,  223 

what  rights  and  conditions, 

- 

. 

223,  224 

his  interest  before  probate, 

- 

224,  225 

"          in  Mississippi, 

- 

- 

225 

de  son  tort,  what? 

- 

226,  228 

is  a  question  of  law,  not  of  fact. 

. 

. 

228 

intermeddling  with  land,  what 

- 

228 

subsequently  qualifying  as  administrator,  effect  of 

- 

229 

liability  and  defence  of. 

- 

229,  230 

provisions  respecting  adm'rs.  extended  to 

- 

- 

258 

EXHIBITS — by  executors  &.  administrators,  in  proof 

of  payment, 

,      327-8 

how  authenticated. 

- 

306, 

345,  358 

EVIDENCE— of  claims  against  decedent,  what 

- 

- 

306,  345 

of  judgment  and  decree, 

- 

306,  345 

specialty,  bond,  note,  or  bill. 

- 

- 

307,  345 

rent,                   .... 

- 

307,  345 

open  account. 

. 

307, 

308,  345 

will  justify  payment  by  adm'r. 

- 

308 

not  necessary  to  presentation, 

- 

- 

308 

by  guardian,        .... 

- 

503 

FEES— administrators  liable  for  to  officers,     - 

- 

- 

364 

entitled  to  counsel  fees  paid,  when 

- 

364,  330-1 

of  judges  and  clerks  of  probate, 

- 

442 

,  451-2-3 

for  extra  services  of, 

- 

-        462 

516 


INDEX. 


FEME  COVERT — what  property  of  hers  is  assets  in  the  hands 
of  her  husband,  .... 

relinquishment  by  of  dower,  ... 

right  of  inheritance,        .... 

distributive  share  of  personalty,         ... 
paraphernalia,     ....  - 

FOREIGN  ADMINISTRATION— effect  of, 
power  conferred  by,         - 
cannot  withdraw  assets  without  paying  debts, 
where  assets  are  in  transitu,       .  .  - 

duties  of,        ...... 

ancillary  administration  to,  - 

G-UARDIAN  AND  WARD— by  will, 

guardian  must  appear,  accept  and  give  bond, 
unless  otherwise  directed  by  deed  or  will, 
consequence  of  neglect,  ... 

appointment  by  court,  ... 

entitled  to  property  of  ward, 
inventory  required  of,  -  -  - 

annual  account  by,         - 
failure  to  render,      .... 

waste  not  to  be  committed  by, 

may  cultivate,  or  lease,  how 

expenditure  for  ward,      .  -  -  - 

sale  of  ward's  property, 

when  to  give  additional  security, 

on  failure,  what       .... 

power  of  guardian,  when  to  cease,     - 
of  lunatic,  idiot,  person  non  compos,  &c. 
to  give  bond,  ..... 

power  and  control  of,  .  .  - 

duties  of  such  guardian,  ... 

when  guardianship  to  cease,        .  -  - 

oath  of  every  guardian,  -  - 

non-resident  guardians,  ... 

non-resident  ward,  .... 

of  bastards,         .  .  .  .  - 

duties  of  executors  &.  adm'rs.  transferred  to  guardian, 
not  to  remove  property  of  ward, 
when  non-resident  guardian  may  remove  it, 
GAURDIAN  AD  LITEM— 

appointed  where  guardian  resides  abroad, 

GUARDIANSHIP— 

(See  Guardian  &  Wabd.) 


275, 

281 

398, 

401 

-  423-4 

411-12 

- 

412 

211, 

212 

212, 

213 

213 

213, 

214 

214 

214, 

215 

466 

. 

466 

466 

466-7-« 

. 

467 

468 

. 

468 

469, 

470 

. 

469 

469 

. 

469 

469, 

470 

. 

470 

470, 

474 

. 

471 

471, 

467 

. 

471 

471 

. 

471 

472 

. 

4^2 

472 

. 

473 

473 

- 

473 

474 

- 

475 

475 

22 

466, 

503 

- 

500 

- 

419 

- 

426 

. 

415 

. 

416 

416, 

417 

416,  419, 

420 

420, 

421 

INDEX.  517 

HABEAS  CORPUS— 

HALF-BLOOD— may  inherit,  when 

HOTCH-POT — advancement  to  be  brought  into  the  estate, 

(^See  Distribution,  and  Advancement.) 
HEIRS — signification  of,  .... 

who  may  be,  .... 

of  ancestor  last  Beized,  ... 

collateral,  .... 

legitimacy  of,  .... 

(See  Distribution.) 
HINDS  COUNTY,  447— time  of  holding  court  in,  -  -        455 

board  of  police  may  appoint  fit  person  to  transcribe 

certain  papers,  ....  447,  448 

IDIOTS,  LUNATICS,  AND  PERSONS  nrni  compos  mentis. 

guardianship  of, 

on  whose  application, 

jury  of  inquisition, 

certificate  of  lunacy, 

care  of  their  person  and  estate, 

inventory  of  their  effects, 

account  by  guardian  of, 

bond  and  security  by  guardian, 

duty  of  guardian — oath, 

when  restored  to  reason, 
INFANCY— (See  Guardian  &  Ward.) 

contract  by, 

when  void,  and  voidable, 

recognition  and  aflarmance  of,  after  age  of  21, 

maintenance  of, 
INFANTS— (See  Guardian  &  Ward,  and  Infancy.) 

sale  of  their  lands, 

of  personalty,  ... 

lease  of  their  land, 

habeas  corpus,  .  .  - 

INCREASE— commissions  on, 

of  property  inventoried — How.  &  H. 
INQUISITION— of  lunacy, 
INSOLVENT  ESTATES— when, 

proceedings  of  administrator, 

account  and  statement, 

commissioners  appointed, 

notice  by, 

duty  of  commissioners,  and  report  of, 

proceedings  of,  and  time  of  report, 


- 

- 

471 

- 

471 

- 

- 

471 

- 

471 

- 

- 

471 

- 

471 

. 

- 

471 

- 

471 

- 

- 

472 

- 

472 

. 

493 

. 

- 

494 

. 

495 

. 

- 

495 

.) 

- 

497, 

498 

497,  498-9 

- 

- 

488 

- 

500-1 

- 

354, 

355 

. 

402 

- 

. 

471 

811, 

313, 

,  315, 

316 

- 

311, 

323 

- 

- 

311 

- 

311, 

312 

- 

- 

316 

. 

312, 

313 

- 

316, 

322 

518  INDEX. 

INSOLVENT  ESTATES— continued: 

compensation  of,        -  -  -  -  -  312 

distribution  of  estate,       -  ...  -        312 

exceptions  to  report,  ...         312,  316,  317 

re-opening  commission,  ....        321 

reference  of  to  referees,        ....  312 

no  suit  against  adm'r.  for  nine  months,  -  312,  317 

nor  after  report  of  insolvency,  ...  313 

exception  to  this  rule,      .....        313 
effect  of  generally,  ....      317,  320 

consent  of  creditor  to  have  claim  settled  by  law,  -        313 

creditor  failing  to  prove  claim  before  commissioners'  board,       313 
remedy  of  such  creditor,  -  -  -  320,  321 

suit  before  insolvency,  proceedings  in,  -  -  313 

where  debt  is  not  due,  ....        313 

power  of  commissioners,        ....  313 

on  failure  to  report,  time  extended,  ...        313 

may  be  compelled  to  report,  ...  313 

INTEREST— when  administrator  liable  for,  -  347,  360-2 

when  widow  entitled  to,  ....        391 

when  guardian  chargeable  with,        ...  502 

INVENTORY— 

when  required  of  executor,  adm'r.  and  guardian,     259,  262,  468 
appraisers  appointed,  warrant,  ...        259 

oath  of,  to  be  annexed  to  warrant,  -  -      259,  260 

proceedings  of,  .....        260 

when  evidence,  .....      261,  264 

subsequent  inventory,  when        ....        261 
excused  by  detention  of  goods  by  collector,  -  261 

if  more  than  one  executor  or  adm'r.,  who  may  return,  261-2 

within  what  time — consequence  of  neglect,  -  262 

if  no  goods,  no  inventory,  ....        262 

what  to  be  inventoried,  ....      262,  263 

real  estate  not  to  be  inventoried,  ...        266 

may  be  compelled  by  probate  court,  -  -  262 

what  will  render  executor  or  adm'r.  liable,  -  262,  263 

when  liable  on  bond  for  debt  due  from  himself,  -  263 

by  administrator  de  bonis  non,  when        ...        264 
action  against  executor  or  adm'r.  for  neglect,  -  264 

damages,  amount  of,  and  when,  ...        264 

of  increase  of  property — How.  &  H.  -  -  402 

ISSUES — in  plenary  proceedings,  when  made  up  and  how  tried,  &c.       23 
judgment  on  must  be  by  the  probate  court — a  judgment 

by  the  circuit  court  is  a  nullity,  -  -  23-24 


INDEX.  •  519 

JOINT-TENANTS— partition  between,  -  -  434,  440 

JUDGE  OF  PROBATE— 

may  certify  proof  and  acknowledgment  of  deeds  whether 

the  land  be  in  his  county  or  not,  -  -  453 

may  solemnize  matrimony,  ....        453 

may  authorize  ministers  to  solemnize  marriage,        -  453 

has  powers  of  trustees  of  school  lands,  -  -        453 

must  supervise  drawing  jury,  when  -  -  453 

may  approve  bonds  of  sheriffs  as  tax  collectors,  -        453 

other  duties,  .  .  .  -  .  453 

when  disqualified — (See  Disqualification.) 
may  practice  in  other  courts,  ...  446 

to  receive  applications  for  administration,  inventories, 

appraisements,  &c.        ....  333 

to  decree  allowance  of  accounts,  ...        333 

proceedings  on  exception  thereto,      ...  333 

jurisdiction  of,  ...  -  8,  441 

JUDGE  AND  CLERK— how  elected,  ...  441 

oath,  and  bond,  .....        441 

vacancy  how  filled,  ....  442 

seal  of  court,       ......        442 

compensation  and  perquisites,  -  -  442,  451-3 

JURISDICTION— history  of. 

of  the  courts  ecclesiastical,  -  -  -  -     1  to  6 

of  courts  of  chancery — see  note  to     -  -  -  3  to  6 

in  different  states  of  the  Union — note,     -  -  -    2  to  4 

in  Mississippi,  of  courts  of  probate,  -  -        7  to  17 

"  of  courts  of  chancery,       -  -  17  to  20 

general  rule  for  ascertaining  when  courts  of  probate  have 

jurisdiction,  -  -  -  -  9  to  11 

exceptions  to  the  rule,  -  -  -  -       10  to  12 

where  limited,  how  to  be  exercised,         -  -  -  12 

examples  of  jurisdiction  of  probate  court,      -  -       12  to  14 

objection  to,  how  made,  and  when,  -  -  14,  15 

once  exercised,  is  gone — and  can  be  restored  only  by 

consent  of  parties,  -  -  -  -  15 

consent  cannot  give  it,  if  not  conferred  by  law,  -  15 

nor  take  it  away  where  conferred  by  law,  -  15  to  16 

if  judge  disqualified,  where  jurisdiction  vests,  -       16  to  18 

powers  transferred  to,     -  -  -  -        443-4,  450 

court  holden,  where  and  when,  ...  445 

special  term,  when  .  .  .  -  .        445 

may  issue  summons  for  party  or  witness,      -  -      445,  446 

"        and  an  attachment,  and  imprison,       -  -        446 


520  •  INDEX. 

LEGACY — what,  either  general  or  specific,         ...        174 

when  general — when  specific,  ...  176 

specific,  kinds  of,  difference  between,  -  -        175 

••        subject  of,  what      ....      175,  176 

"        when  specific  and  pecuniary,      ...        176 

♦'        when  specific  legacy  is  wholly  lost,  -  177 

donations  causa  mortis,  ...  177,  178 

cumulative,  when  -  '  -  t     178,  180 

ademption  of— what,  when  -  •  -  180,  182 

in  satisfaction  of  a  debt  when,  -  -  -      182,  184 

lapse  of— disposition  of,  ...    150,  184,  185 

"        when  it  falls  into  the  residue,  -  -      165,  187 

abatement  of,       -  -  -  -  -  187,  190 

assent  to  by  executor,  .         ,   .  .  .      190,  192 

time  of  payment,  when  -  -  -  192,  193 

interest  and  profits  on,  -  -  -  -      193,  196 

action  for, 196, 199,  430 

*•        at  common  law,      ....  431 

LEGATEES — entitled  to  same  remedy  as  distributees,      -  -        429 

(See  Distributees.) 
judgment  for,  and  verdict  for,  must  give  damages,  -        431 

LETTERS— testamentary,  ....  232 

of  administration,  ....  233,  8 

revocation  of,  ....  -         245,  8 

LIMITATION— for  presentation  of  claims,  ...        309 

requisite  to,  .....  308 

effect  of, 309 

not  to  extend  to  legatees,  &c.  ...  309 

publication  of  notice  to  present,  ...        310 

what  constitutes,        ....  -  310 

when  to  commence,         .....        310 
legal  notice  to  present,  what  -  -  -  311 

what  will  prevent,  -  -  -  -  -        356 

executor  and  adm'r.  not  bound  to  plead,  -  -  356 

acknowledgment,  without  promise  does  not  remove,        -        357 
cannot  affect  creditors  after  settlement,         -  -      357,  358 

promise  cannot  revive  a  debt  barred  by  special  statute,  358 

changed  to  two  years,  ....  358-9 

claim  how  contested,       .....        359 
to  what  claims  applicable,     ....  359 

to  probate  of  will,  .....        199 

LIST— (See  Inventory) 259 

of  debts  sperate  and  desperate,        ....        260 


INDEX. 


521 


LOSS  AND  DECREASE  OF  PROPERTY— 
commissions  on, 
adm'r.  not  liable  for,  when — How.  &  H. 

LUNATICS— (See  Idiots,  &c.) 

MARINERS— excepted  from  the  statute  of  wills, 

MARSHALLING— (See  Assets.) 

MONEY — must  be  inventoried,  when 

to  be  accounted  for,         .... 
of  wife,  when  assets  of  deceased  husband, 
legal  assets,        .  .  .  .  . 

NEXT  OF  KIN— who,  .... 

entitled  to  be  guardian,  -  .  . 

entitled  to  administer,  ... 

summoned  to  contest  will,  .  -  . 

NON  COMPOS  MENTIS— (See  Idiots.) 

NON-RESIDENTS— (See  Absentees.) 

NOTICE — prerequisite  to  order  and  decree  against  minor, 
must  be  personally  served  on  his  guardian, 
how,  if  guardian  absent  or  personally  interested, 
on  final  settlement  of  accounts,  by  publication, 
if  parties  reside  beyond  the  limits  of  the  state, 
otherwise  it  must  be  by  personal  service, 
by  commissioners  of  insolvency, 
of  auditing  and  reporting  accounts  for  allowance, 
of  appointment  of  commissioners  to  assign  dower, 
of  surrender  of  letters,  -  -  - 

of  application  to  sell  lands, 
of  sale  of  lands,  -  -       <    *^  :■  L'i*j 

of  sale  of  personalty,  .  -  - 

of  grant  of  letters,  ... 

by  commissioners  of  insolvency, 
of  application  to  sell  or  compromise  claim, 
non-resident  creditors,  ... 

non-resident  feme  covert, 

"  being  distributee, 

NUNCUPATIVE  WILLS— what, 

must  be  in  last  sickness,        ... 
at  the  habitation  of  the  deceased, 
witnesses  to,  how  many,       ... 
what  to  be  proved,  ... 

when  good  in  part, 
who  capable  witnesses, 
when  proved,  ...         '  i 

66 


864,  355 
401-2 

43,  55 

263,  269 
270 
275 

•       283 

420 

467 

236-7 

232 


22 

22 

22 

23,  334 

23,  332 

23 

316 

333 

390 

247 

295 

803 

310 

312-16 

843,  344 

358-9 

399 

405 

54,55 

56 

56 

56 

56,57 

58 

58 

100 


522  INDEX. 

OATHS— of  executors,  -  -  -  -  -        232 

of  administrators,  ....  238 

accompanying  inventory,  ...  260,  468 

OBJECTIONS— (See  Exceptions.) 

OFFICE— of  clerk  of  probate,        -  -  -  -  -        444 

in  which  court  is  to  be  held,  ...  449 

what  recorded  in,  -  -  -  -  -        457 

examination  of,  how  made,  ...  463 

ORPHANS — (/See  Guardian  &  Ward,  and  Infant.; 

ORPHANS'  COURT— powers  transferred,  -  -  443 

PARCENERS— (See  Joint-Tenants.) 

PARTITION— of  devised  land,  ....  432 

of  descended  land,  .....        433 

of  personalty,  -  -  -  -  -  433 

between  joint-tenants,  &c.  ...  434,  440 

PAYMENT  OF  DEBTS  &  LEGACIES— order  of,  -  323 

priority  of  claims,  ....  323,  326 

what  entitles  creditor  to  payment,  -  ^      358,  359 

repealing  and  amendatory  law,  -  -  358,  359 

when  satisfaction,  when  not,  ...  352 

PETITION— must  contain  logical  statement  of  facts,        -  -  21 

if  fraud  alleged,  greater  latitude  is  allowed,  -  21 

when  additional  facts  may  be  given  in,  -  -  22 

must  not  be  multifarious,  nor  informal,  nor  defective,  22 

all  claimants  must  be  made  parties,  -  •  -  22 

by  distributees,  .....      429,  430 

by  legatees,         ......    196-9 

(See  Dower.) 

PERISHABLE  PROPERTY— sale  ofbyadm'r.oticoZ/.    -  -        250 

see  note,  -  -  -  250 

PERSONAL  ESTATE— to  be  inventoried,  -  -  -        259 

what  constitutes,       -  -  -  .  .      265,  283 

vests  in  executor  and  adm'r.  ....  265 
sale  by  executor  and  adm'r.  ...  303-5 

by  guardian,  .....        470 

when  exempted  by  will  from  payment  of  debts,  159-60,  284 

first  liable  for  debts,  .....  284 
distribution  of,  -  ...  -      425,  433 

PHYSICIANS'  BILLS— preferred,  not  over  $25,  -  -        328 

PLEADINGS  &  PRACTICE,  -  -  -  -      20  to  26 

plenary  proceedings  by  bill  and  petition,  -  -  21 

rules  respecting  same,  -  -  -  -         21,  24 

when  governed  by  rules  of  ecclesiastical  court,  -:;j  oi'nr  25,  26 
how  far  equity  rules  prevail,  -  -      njusiiv.-    25,26 

oil 


INDEX. 


523 


PLEA — of  special  statute  of  limitations,  by  exec'r.  or  adm'r.  how, 
by  executor  de  son  tort,         .  -  -  - 

POSTING— (See  Notice.) 

POWER — intention  must  govern  construction  of, 

must  be  equitably  construed,        .  -  - 

naked  power  confined  to  testator's  intent, 

if  coupled  with  an  interest,  more  liberally, 

may  be  naked  as  to  one,  and  coupled  with  an  interest  as 

to  another  estate,     ...  - 

appendant,  when,      .  -  -  -  - 

extent  of — examples,       .  -  .  . 

to  sell,  what  included,  .... 

in  Mississippi,  executor  declared  trustee,  when 
when  probate  of  will  necessary  to  execution  of, 
execution  of  relates  to  date  of  instrument  creating  the 

power — reason  of  this  rule,        .  .  - 

to  two  executors,  how  to  act,       .  .  - 

when  they  may  act  separately,  ... 

if  it  fails,  property  goes  to  donor's  heirs, 
execution,  when  good  in  part  and  void  as  to  excess, 
of  attorney  from  non-resident  husband  or  wife  to  execute 
a  deed,  .  .  .  .  - 

(See  DowEK.) 

PREFERRED  CLAIMS,        .... 

PRESENTATION  OF  CLAIMS— (Sec  Limitation.) 

PRETERMITTED  CHILDREN— rights  of, 

PROBATE  AND  LETTERS  TESTAMENTARY— 
where  made,  within  what  time,  and  how, 
in  what  county — ^jurisdiction  of, 
witnesses  of,  their  proof  how  made, 
within  what  time  contested, 
what  number  of  witnesses  required  to  probate, 
what  witnesses  must  prove, 
when  probate  may  be  set  aside, 
when  will  may  be  re- propounded, 
to  what  court  motion  made, 
authentication  and  certificate  of, 

of  lost  wills,  how  made, 
when  subscribing  witness  is  devisee, 
who  are  capable  witnesses, 

(See  Witnesses.) 
devisavit  vet  non,  proof  required, 
of  foreign  wills, 

I  must  have  seal  of  clerk,         ... 

(See  Executobs,  and  Revocation.) 


358 
229,  231 

166 
166 

166,  167 
167 

167 
167 

167,  168 
167,  169 

169 

169,  170 

170 
170 

170,  174 
174 
174 

399 


23,  328, 

329 

76 

-   199, 

200 

200, 

201 

201 

. 

202 

-   202, 

204 

. 

204 

-   205, 

206 

205, 

206 

-   206, 

207 

207, 

208 

.   208. 

209 

. 

209 

.   209, 

210 

210 

. 

81 

442 

m 


INDEX. 


445,  448,  449,  450,  453-7 
23 


PROBATE  COURT— (See  Jueisdiction.) 
"  when  held, 

PROCESS — may  be  by  service  or  publication, 

how  enforced,  -  -  -  -       24,  25,  451 

general  provision  respecting,  ...  460 

of  boards  of  police,         .....        460 

PROOF— (/See  Evidence.) 

PUBLICATION— (See  Notice.) 

"  non-resident  parties,  ...         22,  23 

PURCHASE— how  different  from  descent,  -  -  -        416 

PURCHASE-MONEY— lien  for,         ....      298,  300 

REAL  ESTATE— charge  on,  what— form  of,        -  -  158,  159 

"     when  on  whole  or  part,      -  -      159,  160 

"     when  personal  estate  exempted  by,     160-61-62 
"     effect  of  against  purchasers,  -         161-62 

'  "     when  of  "rents  &  profits"  as  to  cred- 

itors and  legatees,  effect  what      -         161-62 
(iSee  Tetjst,  and  Power.) 

RECORD — truth  of  not  questionable,  ...  9 

how  kept,  ......  20 

on  appeal,  how  carried  up,  ...  38 

must  show  jurisdiction,  ....  40 

of  a  will,  199,  207 

of  foreign  will,  .....        211 

razing,  penalty  for,  ....  445 

REFEREES— in  case  of  insolvency,  -  -  -  312,  317 

REFERENCE— of  claims  against  insolvent  estate,     -  -      312,317 

of  issue  to  circuit  court,  -  -  -  -  24 

of  administrator's  account,  ...  333 

REFUNDING  BOND,  430 

in  case  of  distribution,  ....  430 

on  payment  of  legacy,  ....        431 

REGISTER -duty  of, 442 

RELINQUISHMENT— by  wife,  -  -  -  398,  404 

(See  DowEB.) 

RENUNCIATION— by  wife,  of  dower,     -  -  -  398,404 

of  testamentary  provision^  -  -  398,  395 

REPORT— of  inventory, 260 

of  sale  of  land  by  executors,  ...  297 

contents  of  such  report,  -  - .  -  -        305 

of  commissioners  of  insolvency,        -  -  -  312 

time  of  such  report,         -  -  -  "v."        ^^^ 

on  failure  to  report,  what  ...  314 

of  insolvency,  when       ■  -      ,      ■  -  -       315 , 


INDEX.  525 

REPORT— continued: 

exceptions  to,  when              ....  316. 

of  auditors,         ......  833 

exceptions  thereto,                ....  333 

of  partition  of  land  by  commissioners,                -            -  437 

REPUBLICATION— effect  of,             ...              77,  79,  80 

form  of,  by  codicil,           -            -            -            -  79,  80 

by  cancellation  of  a  revocatory  will,                -            -  80 

statute  of  Mississippi,  and  rule  here,        -            -            -  80 

effect  of  memoranda,              ....  81 

REVOCATION— express,  how                 ....  61 

by  a  second  will  revoking  the  former,            -           -  61 

'              contents  of  second  will  must  be  known,               -  61,  62 

"        must  expressly  revoke  the  former,              -  62 

"        must  have  all  the  solemnities  of  the  first,          -  62 

intention  to  revoke  must  not  be  imperfect,       -            -  62,  63 

distinction  in  England  between  revoking  &  disposing  will,  63 

"        between  wills  in  England  and  here  as  to 

personalty,             -            -           -            -  63 
if  second  will  fail,  when  first  will  not  revoked,              63,  64,  75 

if  several  parts  of  will,  cancelling  one  revokes  all,  64,  65 

of  two  former  wills  by  a  third,           ...  64 

evidenceof  intention  to  revoke  or  not,       -            -         64,  65,  66 

what  constitutes  cancelling  or  destroying,      -            -  66,  68 

when  actual,  when  presumptive,               -            -    '  66,  67 

must  be  by  the  testator,  or  by  his  direction,                -  67 

must  be  completed,          .....  67 

when  a  codicil  revokes,          -            -            -            -  68,  69 

implied,  by  conveying  away  the  land,       -            -         69,  70,  71 

by  foreclosure  of  mortgage — by  exchange,      -            -  71,72 

by  agreement  for  partition,           -            -            -            -  72 

when  pro  tanto,        -            -            -            -            -  72,  73 

reason  of  the  doctrine,      .....  73 

by  marriage  and  birth  of  a  child,        .            .               73,  74,  75 

by  marriage  only,  of  a  woman's  will,       -            -            -  75 

by  birth  of  child  after  date  of  the  will,            -            -  76 

parol  proof  in  contradiction  of,  when  admissible,  76,  77 
of  letters  of  administration,  ...  246,  248 
of  letters  testamentary,               ...           245,  248 

RULES — when  courts  of  record  may  establish  rules — note  to  21 

SALES— of  land  charged  by  will,              -            -            -            -  161 
of  land,  under  a  power,         ...          167,  174,  252 

of  perishable  property,  ....  251 
of  land  by  executor  and  adm'r.          ...      285,  303 


526 


INDEX. 


S  A  LES — continued: 

of  personalty,                   ....  go3,  305 

by  guardian,  -  -  .  .  .  470 
of  lands  for  division  thereof,        ....        433 

must  be  strictly  pursued,       *,,           ...  285,  286 

authority  by  court  of  probate,  t  -            -            .  286,  287 

to  be  strictly  pursued,            -  '  •,       ...  287,288 

may  be  sold  in  parcels,                 -            -            .  .        288 

contract  for  by  administrator  void,  -  -  288 
decedent  must  have  been  seized,               ...        289 

undevised  land  to  he  first  sold,           ...  289 

conveyance  may  be  to  purchaser's  assignee,         -  -        289 

authority  must  appear  on  the  deed,                 -            .  289,  290 

of  the  deed  by  administrator,  &c.         -            -  290,  291 

defect  of  title,  no  defence,      ....  291 

administrator's  title  in  the  premises,        .            -  -        291 

purchase  by  administrator  at  his  own  sale,      -            -  291,293 

probate  court  may  vacate,  when               -            .  -      -  293 

legislature  may  order  sale,                 ...  293,  294 

condition  of  law  to  be  strictly  fulfilled,                 -  -        294 

under  statute  of  Mississippi,               -            -            -  294,  297 

proceedings  under,           ....  297,  299 

when  void,                 .....  299,  301 

examples,  &c.                  ....  301,  303 

proceedings  at  such  sale,       ....  303,  305 

SCHEDULE— (See  Inventokt.) 

of  debts  sperate  and  desperate,          ...  260 

on  reporting  insolvency  of  estate,             -            -  286,  311 

of  slaves,                  .....  414,  415 

SEAL — of  the  clerk  of  probate,      .....        442 

not  necessary  to  a  will,          ....  43 

when  destruction  of  impairs  will,             ...  66 

SECURITY  &  SURETY— may  have  counter  security,           -  248,  474 

on  administration  bonds,              ...  239,  241 

action  against,           .....  242,  244 

on  bond  for  sale  of  property,        ...  295,  297 

on  guardian's  bond,  ....  468 
on  appeal  bond,                .....    27-30 

on  clerk's  bond,         -            -            .            -            -  457,  458 

SETTLEMENT— (See  Account.) 

SET-OFF— by  administrator,  executor,  &c.      -           -            -  348,^2 

against  them,      .....  351,  352 

of  purchase  by  distributee,  against  his  share,            -  430 


INDEX.  527 

SHERIFF— when  to  administer,  -  -  -  -    365-6 

to  administer  oath,  when       -  -  -  -  384 

to  set  oflf  dower,  .  .  .  -  _        384 

to  summon  commissioners,  ...  383 

SLAVES — emancipation  of  by  devise,       ...  154,  158 

manumission  of,  by  an  infant,  -  -  491-2,  495 

list  of,  when  held  for  life,  ...  414-15 

SOLDIERS— (See  Makineks.) 

infants  may  be,  .  -  _  .  .        494 

SPECIAL  TERM— of  probate  court,  ...  445 

SUMMONS— to  executor  failing  to  inventory,       -  -  -        246 

may  be  attached,       .....  247 

(See  Process.) 
SURRENDER — of  letters  testamentary  or  administration,  247 

SURVEYS— on  partition  of  land,  -  -  -  -       436 

TENANT  IN  COMMON— (See  Joint-Tenant.) 
TENURE  OF  OFFICE— of  judge  and  clerk,  -  -  441 

TERMS  OF  COURT, 445,  458 

TESTAMENTARY  LETTERS— (See  Probate,  and  Executors.) 
TESTAMENTARY  GUARDIAN— (See  Guardian  &  Ward.) 
TITLE — not  warranted  on  sale  by  executor,  -  -  291 

to  decedent's  goods  vests  in  executor  and  adm'r.  -    222-5 

TRUST— what?  how  created  in  a  will,  ...  163 

must  be  certain  as  to  the  thing  and  object,  -  163,  164 

how  descendible,       .....  164 

effect  of  against  third  persons,      -  -  -,  164,  165 

resulting,  when?  and  to  whom?         ...  165^ 

trustee  cannot  make  profits  on,  -  -  165,  166 

VACANCIES— in  office  of  clerk,  how  filled,  -  -  442 

WARD— (See  Infant.) 
WARRANT  OF  APPRAISEMENT— (See  Inventory.) 

WASTE— by  guardian, 499 

by  widow,  .....  414,  415 

WILLS — what?  and  how  executed  at  common  law,     -  -         41,  42 

"        by  statute,       ...  43 

where  written  wholly  by  testator,      -  -  -  '43 

need  not  have  a  seal,        .....         43 
when  mark  sufficient,  ....  44 

how  to  be  signed,  and  in  what  part,        -  44,  45,  &>  notes, 

imperfect  signature,  effect  of,  ...         45, 46 

form  of  will,  and  intention,         -  -  -  -    46, 49 

when  proof  required  that  will  was  read,  and  when  the 

fact  presumed,  .....  49 

if  not  wholly  written  by  testator,  how?         -  -         49,  50 


528 


INDEX. 


V 


WILLS— continued: 

when  good  as  to  personalty,  tho*  not  as  to  realty, 

50 

signature  of,  how?  and  acknowledgment, 

50,51 

attestation  of — how^  when,  and  where, 

-   52,53 

publication  how  made,           -            .            .            . 

53,54 

nuncupative  wills,            .... 

.    54,58 

codicil,  what  and  how  executed,        ... 

59,61 

revocation  of  wills,  express, 

-   61,69 

"                "       implied,              ... 

69 

who  incapable  of  making  a  will, 

-   87,92 

who  may  be  devisees, 

92,  94 

sanity  of  testator,              .... 

94,  100 

"        what  proof  of  admissible, 

100,  101 

what  proof  of  fraud  admissible, 

101,  103 

"        duress        "                   ... 

101,  103 

"        undue  influence,      ... 

101,  103 

what  embraced  in,                  .... 

104 

after  acquired  lands  when  embraced, 

104,  105 

'    what  may  be  devised,  real  and  personal. 

105,  107 

construction  of— 

••               as  to  date  when  testator  speaks, 

107 

••               intention  of  testator  to  govern,    - 

108 

"      how  ascertained, 

108,  112 

"      as  to  quantity  of  estate, 

112,  116 

••      statutes  and  effect  of, 

116,  117 

"      rules  of  generally. 

117,  121 

WILLS,  FOREIGN— how  proved  in  Mississippi, 

81 

according  to  what  law  executed. 

82 

what  law  governs  as  to  personalty, 

82 

"            as  to  real  estate, 

82 

effect  of  in  different  states, 

83 

by  what  law  interpreted. 

83 

from  what  date  it  has  effect. 

83 

when  evidence  without  probate,            •  *'"^f'  -     - 

84 

authentication  of,       -            -            -      '     - 

84,  86 

WITNESSES— of  a  will,  how  testimony  taken, 

201,  204 

•what  they  may  prove,            .... 

204,  210 

of  a  lost  will,      .           .           .           .           - 

209 

when  devisee,  how  qualified,             .           -           - 

209 

who  capable,             ....         209, 

210,  257 

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